Petition for Writ of Certiorari — O'Neal v. Judicial Qualification Commission

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Supreme Court, u.S.

FILED

95 18 JUN 28 1995

re

we me LE

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1995

LINDA O'NEAL,

Petitioner,

V.

JUDICIAL QUALIFICATION COMMISSION

OF GEORGIA

Respondents,

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF GEORGIA

PETITION FOR WRIT OF CERTIORARI >

Linda O'Neal

Petitioner, pro se

Route 1, Box 478

Fort Valley, Georgia 31030

(912) 825-1678

i

QUESTIONS PRESENTED

1. Whether an elected judge in light of the First

Amendment to the United States Constitution as applicable to

the states through the Fourteenth Amendment can be

disciplined and removed from office based wholly or in part

on her making a truthful public statement on a matter to

which she is a party?

2. | Whether an elected judge in light of the Fifth

Amendment to the United States Constitution as applicable to

the states through the Fourteenth Amendment can be

disciplined and removed from office based wholly or in part

on her refusal to acknowledge that any specific action taken

by her was improper and her refusal to accept personal

responsibility for the difficulties she experienced with other

elected officials?

3. | Whether an elected judge in light of the Fifth

Amendment to the United States Constitution as applicable to

the states through the Fourteenth Amendment can be

disciplined and removed from office if her lawyer is not

accorded a reasonable period of time exceeding two days in

which to prepare a defense for a disciplinary proceeding

before the Judicial Qualification Commission that involves a

voluminous amount of evidence?

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED i

TABLE OF AUTHORITIES iv

OPINIONS BELOW ]

JURISDICTION 2

CONSTITUTIONAL PROVISIONS INVOLVED 3

STATEMENT OF THE CASE 5

REASONS FOR GRANTING THE WRIT 5

19

I. This case raises issues of exceptional legal

importance for judges who express public

opinion about social, political, or

governmental matters.

A. The Supreme Court of Georgia violated a

judge's right to freedom of expression in |

contravention of the First Amendment to the |

United States Constitution by removing her |

from office for making a truthful public )

statement about her difficulties with other |

elected county officials, who had violated the

law and failed in the performance of their :

statutory duties. ‘

22

II. This case raises a novel issue of great legal

significance for judges who are called before

judicial disciplinary bodies on charges of

misconduct.

A. The Supreme Court of Georgia violated a

judge's due process rights in contravention of

the Fifth Amendment to the United States

Constitution by removing her from office for

refusing to acknowledge that any specific

en os

atacand)

Il.

ili

action she had taken was improper and for

refusing to accept personal responsibility for

the difficulties she experienced with the other

elected officials of Peach County, who had

violated the law and failed in the performance

of their statutory duties.

This case raises the issue of adequacy of legal

counsel for judges called before judicial

disciplinary bodies on charges of misconduct.

A. The Supreme Court of Georgia violated a

judge's due process rights in contravention of

the Fifth Amendment to the United States

Constitution by removing her from office

while the hearing record relied upon for the

removal determination showed that she was

denied adequate legal counsel at the hearing.

CONCLUSION

APPENDIX

l. Supreme Court of Georgia

Decision

ya Judicial Qualification Commission

of Georgia, Decision

3. Supreme Court of Georgia

Order Denying Reconsideration

4. Supreme Court of Georgia

Motion for Reconsideration

5. Supreme Court of Georgia

Brief in Support of Motion

6. Supreme Court of Georgia

Petition and Supporting Brief

In Objection to JQC Findings

y A Magistrate Judge Issues Statement

24

26

iv

TABLE OF AUTHORITIES

Cases

Pages

Scott v. Flowers, et al., 910 F.2d 201 (Sth Cir. 1990). 20, 21

Inquiry Concerning A Judge No. 93-62,

RE: P. Kevin Davey, Supreme Court of Florida (1994). 23

Inquiry Concerning A Judge No. 93-62,

RE: P. Kevin Davey, Supreme Court of Florida (1994). 24

Constitutional Provisions

United States Constitution

First Amendment

Fifth Amendment

Fourteenth Amendment

28 U.S.C. §1257

Official Code Of Georgia,

OCGA § 16-10-97

OCGA § 15-10-100

OCGA § 15-10-102

OCGA § 15-10-23(b)

Georgia Judicial Code of Conduct

Canons

]

2A

2B

3 B(4)

3 E(1)

2, 19

2, 22, 23, 24, 26

2

a ey

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1995

LINDA O'NEAL,

Petitioner,

V.

JUDICIAL QUALIFICATION COMMISSION

OF GEORGIA

Respondents,

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF GEORGIA

PETITION FOR WRIT OF CERTIORARI

The Petitioner, Linda O'Neal, appearing pro se, respectfully

prays that a writ of certiorari issue to review the judgment of

the Supreme Court of Georgia, which ordered her removal

from office as the elected Chief Magistrate of Peach County,

Georgia.

OPINIONS BELOW

The Order of the Supreme Court of Georgia denying

the Motion for reconsideration is not reported and is

appended hereto at A31. The decision by the Supreme Court

of Georgia is reported at 454 S.E.2d 780 (Ga. 1995) and is

appended at Al. The Findings and Recommendations of the

2

Judicial Qualifications Commission are not reported and are

appended at Al2.

JURISDICTION

The decision of the Supreme Court of Georgia was

entered on March 17, 1995. Petitioner's Motion for

Reconsideration, which was timely filed, was denied by the

Supreme Court of Georgia on March 30, 1995. This Court

has jurisdiction to review the judgment of the Supreme Court

of Georgia by Writ of Certiorari pursuant to 28 U.S.C. §

1257.

CONSTITUTIONAL PROVISIONS INVOLVED

1. The First Amendment to the United States

Constitution provides:

Congress shall make no law respecting an

establishment of religion, or prohibiting the

free exercise thereof; or abridging the freedom

of speech, or of the press; or the right of the

people peaceably to assemble, and to petition

the Government for a redress of grievances.

2. The Fifth Amendment to the United States

Constitution provides:

No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a

presentment or indictment of a Grand Jury,

except in cases arising in the land or naval

forces, or in the Militia, when in actual service

in time of War or public danger; nor shall any

person be subject for the same offense to be

3

twice put in jeopardy of life or limb; nor shall

be compelled in any criminal case to be a

witness against himself, nor be deprived of

life, liberty, or property, without due process

of law; nor shall private property be taken for

public use, without just compensation.

3. The Fourteenth Amendment to the United States

Constitution provides in pertinent part:

SECTION 1. All persons born or naturalized

in the United States, and subject to the

jurisdiction thereof, are citizens of the United

States and of the State wherein they reside.

No State shall make or enforce any law which

shall abridge the privileges or immunities of

citizens of the United States; nor shall any

State deprive any person of life, liberty, or

property, without due process of law; nor deny

to any person within its jurisdiction the equal

protection of the laws...

STATEMENT OF THE CASE

1. Preliminary Statement

Judge Linda O'Neal, Chief Magistrate of Peach

County Georgia, believing that the five members of the Peach

County Board of Commissioners had attempted to unlawfully

intimidate her and her court with respect to a pending matter,

in violation of a Georgia criminal statute, OCGA § 16-10-97,

obtained felony warrants for their arrest.’ Almost

: OCGA § 16-10-97 Intimidation or obstruction of jurors or court

officers.

4

immediately following the commissioners’ arrest fifteen

citizens filed complaints with the Judicial Qualification

Commission (hereinafter JQC).?_ None of the complaints

alleged incapacity, corruption, neglect of office, or a

continuing pattern of misconduct. In sum, they were

essentially politically motivated non-specific gripes

emanating from the publicized arrest of the commissioners.

The JQC initially "instructed" O'Neal to meet with its

members on January 28, 1994. Al3. She met with the JQC

"as directed"» Al3. Following the meeting the JQC

conducted an investigation and subsequently filed formal —

charges against O'Neal. A hearing was held on September 29

and 30, 1994.

O'Neal, as evidenced by the record, committed no

crime, breached no tenant of public trust or principle of

morality, professional ‘manners, courtesy, or judicial

temperament. Instead, "she sought to have done nothing

more than was provided for under law". Yet, on the basis of

an extremely erroneous and prejudicial hearing record, the

A person who by threat or force or by any threatening letter or communication:

(1) Endeavors to intimidate or impede any grand juror or petit juror or_any officer

in or of any court of this state or any court of any county or municipality of this

state or any officer who may be serving at any proceeding in any such court while

in the discharge of such juror's or officer's duties... shall, upon conviction thereof,

be punished by a fine of not more than $5,000.00 or by imprisonment for not

more than five years, or both. (emphasis added).

” Over half of the persons who complained to the JQC attend the same

church that two of the Board of commissioners attend. Several are former

co-workers of the same two commissioners. And nearly all are related by blood,

marriage, or business activity to members of the Peach County Board of

Commissions.

: At the meeting O'Neal "denied the allegations made against her, both

orally and in writing; and stated unequivocally that she had at all times adhered to

the highest standards of judicial conduct". A13.

Benham, P.J., Presiding Justice of the Supreme Court of Georgia,

dissenting with respect to the majority opinion in this case. A8

5

Judicial Qualification Commission on December 12, 1994,

recommended to the Supreme Court of Georgia that O'Neal

be removed from office. A12. O'Neal timely filed in the

Supreme Court of Georgia a Petition and Supporting Brief in

Objection to the JQC's Findings and Recommendations. The

Supreme Court of Georgia in a five to one opinion dated

March 17, 1995, held that she had violated the Code of

Judicial Conduct and ordered that she be removed from

office.* Al Presiding Justice Benham, P.J., sharply criticized

the majority's opinion and dissented on freedom of expression

grounds and the inappropriateness of considering O'Neal's

refusal to accept personal responsibility for the difficulties

she experienced with other elected officials of Peach County

in determining that she is unfit to hold judicial office. A8

O'Neal filed a timely Motion for Reconsideration, which was

denied by the Supreme Court of Georgia in an order dated

March 30, 1995. A31

2. Statement of Facts

Linda O'Neal , who had never ran for political office

before, in a contested election, unseated a sixteen year

incumbent for the office of Chief Magistrate of Peach

County, Georgia. Her term of office began January 1, 1993.

The record in this case shows that hostile reaction to her

political upset was present from the moment she took office.

Immediately upon assuming her duties she discovered that

much of the court's office equipment, supplies, files, financial

records and bank statements were missing, most of which

were never returned by her predecessor. Besides taking over

a looted court she faced uncooperative behavior by the sheriff

and the appointed clerk of the County Board of

Commissioners.* ”*’ Notwithstanding the problems with the

’ See the specific canons cited infra note 28.

. Her written requests to the County Board of Commissioners for

6

Board's clerk or the Board's failure to provide the court with

necessary supplies and equipment," the relationship between

O'Neal and the individual members of the Board of

Commissioner's remained friendly for the first eight months

of her term in office .

Meanwhile the sheriff arbitrarily refused for three

months to provide O'Neal with the alarm code to the

courthouse, thus frustrating her attempt to fulfill her statutory

duties to provide night and weekend bond and commitment

hearings, and other essential court services. Further, the

sheriff and his deputies grossly failed, on virtually a daily

basis, to provide the magistrate court with duties required by

statute,"' and many of the duties that were undertaken were

improperly performed. Finally, greatly concerned about the

magistrate court's administration of justice, O'Neal researched

Georgia case law for guidance with respect to the sheriff and

his deputies’ non-performance and improper performance of

required court related duties. Finding no cases on point she

essential office equipment and supplies, such as pens, pencils, stationary, and

chairs were often either totally ignored or were fulfilled months later. A57.

. The equipment and supplies that were eventually provided were often

inadequate for the magistrate court to properly function. A57.

: The situation was so serious that O'Neal had to frequently spend her

own personal money to purchase essential supplies needed for the proper

functioning of the court. AS58.

: O'Neal repeatedly requested budget information needed for proper court

administration from the Board's clerk, but the information was never provided.

AS7.

” Georgia Statute, OCGA 15-10-5, states: "The county governing

authority shall provide suitable offices and courtrooms for the use of the

magistrate court and shall supply all fixtures, supplies, and equipment necessary

for the proper functioning of the magistrate court."

as See infra note 13.

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7

turned to the Georgia Constitution, Statutes, Court Rules and

Code of Judicial Conduct, and found what appeared to be

authority for her issuance of orders to the court's officers to

compel performance of their court related duties.” In reliance

on this apparent authority she issued four separate orders to

the sheriff and his individual deputies on September 13, 1993.

Altogether, the orders instructed the sheriff and his deputies

to comply with the provisions of OCGA § 15-10-100(b),

which requires a sheriff to perform the duties of constables if

the county governing authority has not provided for the

” Georgia Constitution Art. VI, Section I, Para. IV, states:

Each court may exercise such powers as necessary in aid of its

jurisdiction or to protect or effectuate its judgments; but only the superior and

appellate courts shall have the power to issue process in the nature of mandamus,

prohibition, specific performance, quo warranto, and injunction. Each superior

court, state court, and other courts of record may grant new trials on legal

grounds.

Georgia Statute, OCGA § 15-1-3 states, "every court has power":

(1) To preserve and enforce order in its immediate presence and, as near

thereto as is necessary, to prevent interruption, disturbance, or hindrance to its

proceedings;

(2) To enforce order before a person or body empowered to conduct a

judicial investigation under its authority;

(3) To compel obedience to its judgments, orders, and process and to

the orders of a judge out of court in an action or proceeding therein;

(4) To control, in the furtherance of justice, the conduct of its officers

and ‘all other persons connected with a judicial proceeding before it, in every

matter appertaining thereto;

(5) To administer oaths in an action or proceeding pending therein and

in all other cases when it may be necessary in the exercise of its powers and

duties;

(6) To amend and control its processes and orders, so as to make them

conformable to law and justice, and to amend its own records, so as to make them

conform to the truth; and

(7) To correct its own proceedings before final judgment.

Canon 3C(2) of the Judicial Code of Conduct states:

Judges shall require* their staffs, court officials and others subject to

their direction and control to observe the standards of fidelity and diligence that

apply to the judges and to refrain from manifesting bias or prejudice in the

performance of their official duties.

8

appointment of constables by the chief magistrate, and

OCGA § 15-10-102, which sets forth the powers and duties

of constables.” O'Neal sent the orders to chief deputy Deese.

Initially, deputy Deese told O'Neal that he was serving the

orders, but in fact he was not serving the orders. At the JQC

hearing he admitted under oath that he had lied to O'Neal.

When later he refused to serve the orders, O'Neal, pursuant to

statutory law, issued an order to the coroner to serve the

orders on the sheriff." According to O'Neal's uncontradicted

testimony the coroner after picking up the orders from the

magistrate court shortly returned and shoved the orders into

her hand and stated, "1 am not going to serve that" and "I am

not serving anything you say, I don't have to". He then

"stormed" out of the court's offices.'* The coroner also

se Georgia Statute, OCGA § 15-10-100, titled Appointment of constables;

compensation; chief constable, states in part: "(a) Unless otherwise provided by

local law, the county governing authority may provide for the appointment of

constables by the chief magistrate. Constables so appointed shall serve at the

pleasure of the chief magistrate. The compensation of constables so appointed

- be fixed by the omy governing a (b) ra pe me ae

pr pore roy ° (emphasis added).

Georgia Statute, OCGA § 15-10-102, sets forth the powers and duties of

constables as follows:

(1) To attend regularly all sessions of magistrate court;

(2) To pay promptly over money collected by them to the magistrate court;

(3) To execute and return all warrants, summonses, executions, and other

processes directed to them by the magistrate court; and

(4) To perform such other duties as are required of them by law or as

necessarily appertain to their offices.

- OCGA § 45-16-8 states: If any person makes an affidavit stating (1)

that a sheriff is disqualified from acting in any proceeding, which disqualification

was not —* at the outset of the oe or (2) Prenpmery oom re re

The clerk 1 may > aed dos thal to vacant asin an aes ptanaie ty te Gite

office in order to allow for execution by the coroner. (emphasis added).

1. Judicial Qualification Commission formal hearing transcript at p. 339.

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9

handed O'Neal a one sentence letter which stated that he was

not authorized to serve the orders, which provided no

explanation and cited no authority for such statement.'*

Following these refusals to serve the orders O'Neal

issued a Rule Nisi to determine whether Deese should be held

in civil contempt and a Rule Nisi for criminal contempt

against the coroner. At Deese's civil contempt hearing

attended by the sheriff and most of his deputies, O'Neal, after

verbally issuing the orders to the deputies, purged Deese of

contempt. On September 24, 1993, after meeting with the

sheriff in an attempt to resolve some of the problems, O'Neal

issued an indefinite stay with regard to the coroner's hearing.

Approximately an hour later, the Board of

Commissioners, at a called meeting in front of newspaper and

television reporters, read a letter to O'Neal in which they

stated,

The last straw was your recent group of

memos to Sheriff Becham where you ordered

him to do certain things. If you have a

problem with the Sheriff, it is your

responsibility to get with him and work out

whatever the situation requires- and not tu just

serve papers on him. In addition, you have

brought contempt charges against his deputy

and against the County Coroner. This is not

the way to establish a good working

relationship with people...

* The coroner's letter stated, " As Peach County Coroner, I am not

authorized to serve these Orders.”

10

We have decided to give you 30 days to see if

you can get your act together. If you continue

with your present attitude, causing problems

and conflict in the county government, we will

have no choice but to recind [sic] your salary

increase and return you to the original salary

granted to you by the previous commissioners.

O'Neal testified at the JQC hearing that she was

intimidated by the Board's letter. In response to the threat she

obtained felony warrants two months later from a neutral and

detached magistrate judge located in a distant county. The

judge who issued the warrants testified on deposition that he

made an independent determination that there was probable

cause to believe that the commissioners had violated OCGA §

16-10-97." O'Neal delivered the warrants to the sheriff seven

days later."* The commissioner's were then arrested and

immediately released on bond.

An appointed special prosecutor dismissed the

warrants approximately two months later."” Shortly thereafter

O'Neal issued a public statement with respect to the

dismissal, which also summarized her problems with the

sheriff and the board of commissioners. A91.

17

See statute cited supra note 1.

ws The issuing magistrate called O'Neal on December 22, 1994, the day

after issuing the warrants and requested that she verify with the Georgia Attorney

General the proper county name to appear on the warrants. She was able to verify

the proper county name the afternoon of December 23, 1994. The next day was

Christmas Eve so she kept the warrants over the Christmas holidays until the next

regular business day, December 28, 1994.

7 The District Attorney of a neighboring county was appointed special

prosecutor by a Peach County Superior Court Judge. He dismissed the warrants

on the grounds of insufficient evidence.

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Within a few days following the commissioners’ arrest

a group of fifteen citizens, including the Board of

Commissioners, filed similar complaints with the JQC, which

expressed concern over O'Neal's actions.”

3. The JOC Inquiry

Prompted by the complaints, the JQC initially "instructed"

O'Neal to meet with its members on January 28, 1994. A13.

Appearing without counsel, she met with the JOC "as

directed"." A13. At the meeting O'Neal, unexpectedly,

experienced a highly charged atmosphere of bias against her,

which later led to a motion for recusal of three JQC

members.” Thereafter, the JQC conducted an investigation

and subsequently filed formal charges against O'Neal. A

hearing was held on September 29 and 30, 1994.

Prior to the hearing two preliminary motions were

presented to the JQC, a motion for continuance and a motion

for recusal of three members of the JQC. Both were denied.

A continuance was necessary because O'Neal's initial attorney

was caught in the midst of a criminal trial, a death penalty

case from which he could not absent himself. The same

problem caused O'Neal to suffer inadequate representation at

the pretrial conference two days earlier. O'Neal was notified

on September 26, 1994, that she needed to find substitute

counsel for the pretrial conference scheduled for September

27, 1994. With less than twenty four hours notice her

See supra note 2.

7 See supra note 3.

™ Judge Hugh Lawson, who later acted as presiding hea*ing officer at the

JQC hearing told O'Neal during the meeting, without being specific, that she was

guilty of judicial intimidation, an allegation which later became part of the formal

charges.

12

substituted counsel appeared at the pretrial conference. The

quantum of evidence in the case made it impossible for him

on such short notice to become adequately familiar with all of

it or to meaningfully discuss the case with O'Neal.” Thus, at

the hearing when the defense presented its case, favorable

evidence was denied admission because notice of it had not

been given at the pretrial conference.“ Moreover, his lack of

knowledge about the case caused him to be unaware of the

recusal issues.

Her original attorney still in trial, O'Neal appeared at

the JQC hearing on September 29, 1994, with her substitute

counsel. Her attorney advised the JQC at the beginning of

the hearing that his short exposure to the case caused him to

believe that he would be ineffective and not be able to

adequately represent O'Neal without being given adequate

time to prepare. Nonetheless, counsel's motion for a

continuance was denied and O'Neal was forced to proceed

with ineffective counsel.”

ad There were hundreds of pages of documents and over 450 deposition

transcript pages involved in the matter, which were ultimately admitted into

evidence.

- e.g., at the JOC hearing O'Neal attempted to admit evidence of positive

community support for her as Chief Magistrate Judge of Peach County. Over

eighty individuals either wrote letters, signed petitions, or completed favorable

court questionnaires, which significantly countered the allegations of negative

publicity in the fifteen JOC complaints filed against O'Neal.

™ O'Neal's substitute counsel's oral motion for continuance included

statements such as, "I do not feel like 1 am adequately prepared to represent Judge

O'Neal... think that I would not be able to adequately represent Judge O'Neal in

spite of my humanly, over humanly effort over the past two days to become

familiar with these documents. As you are aware, there are, I believe, ten or more

depositions taken in this case. There are literally hundreds, hundreds, I think we

are into the hundreds of exhibits at this point, thousands of pages of documents...1

feel that I would be ineffective." JQC Formal Hearing Transcript. p. 11-17.

= The JQC offered to continue the hearing if O’Neal would take a leave of

absence from her office during the continuance. Such a coercive offer was not

acceptable to O’Neal and she declined the offer.

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13

Following the hearing the JQC issued its findings and

recommendations. It found that O'Neal had violated four

provisions of the Code of Judicial Conduct, and

recommended that she be removed from office. A3.

O'Neal timely filed in the Supreme Court of Georgia a

Petition and Supporting Brief in Objection to the JQC's

Findings and Recommendations. A53. The JQC filed no

response to her petition. In her petition, O'Neal objected to

the JQC's findings and recommendations with respect to each

and every charge on the grounds that they grossly misstated

the facts and recklessly misrepresented the truth.” A53.

Additionally, she challenged the fairness of the hearing and

the lack of due process accorded her during the proceeding.

A54.

4. Decision of the Supreme Court of Georgia

A. Majority Opinion

The Supreme Court of Georgia in a five to one

opinion dated March 17, 1995, held that she had violated

Canons 1, 2 A and B, 3 B (4), and 3 E (1) of the Code of

Judicial Conduct and ordered that she be removed from

office.“ The court characterized the orders she issued to the

” Extremely venomous language was used throughout the JQC's e written

findings and recommendations, which grossly overstated and misstated the facts

and Petitioner's conduct.

” CANON |. An independent and honorable judiciary is indispensable to

justice in our society. Judges shall participate in establishing, maintaining, and

enforcing high standards of conduct so that the integrity and independence of the

judiciary may be preserved. The provisions of this Code should be construed and

applied to further that objective.

CANON 2A. Judges shall respect and comply with the law* and shall

act at all times in a manner that promotes public confidence in the integrity and

14

sheriff and his deputies as being in the nature of mandamus,

and then discussed the inability of a magistrate court to issue

writs of mandamus. It concluded by saying,

We thus find O'Neal exceeded the authority

vested in the magistrate court in issuing orders

to require court officers to comply with their

statutorily imposed duties.

AS.

impartiality of the judiciary.

CANON 2B. Judges shall not allow their family, social, political or

other relationships to influence their judicial conduct or judgment. Judges shall

not lend the prestige of judicial office to advance the private interests of the judge

or others; nor should they convey or permit others to convey the impression that

they are in a special position to influence them. Judges should not testify

voluntarily as a character witness.

CANON 3B. Adjudicative Responsibilities. (4) Judges shall be

patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others

with whom they deal in their official capacity, and shall require* similar conduct

of lawyers, and of staff, court officials, and others subject to their direction and

control.

CANON 3E(1). Judges shall disqualify themselves in any proceeding

in which their impartiality might reasonably be questioned, including but not

limited to instances where: (a) the judge has a personal bias or prejudice

concerning a party or a party's lawyer, or personal knowledge* of disputed

evidentiary facts concerning the proceeding; (b) the judge served as a lawyer in

the matter in controversy, or a lawyer with whom the judge previously practiced

law served during such association as a lawyer concerning the matter, or the judge

has been a material witness concerning it; (c) the judge or the judge's spouse, or a

person within the third degree of relationship* to either of them, or the spouse of

such a person, or any other member of the judge's family residing in the judge's

household*: ( i) is a party to the proceeding, or an officer, director, or trustee of a

party; (ii) is acting as a lawyer in the proceeding; (iii) is known* by the judge to

have a more than de minimis* interest that could be substantially affected by the

proceeding; (iv) is to the judge's knowledge* likely to be a material witness in the

proceeding.

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15

With respect to O'Neal conducting deputy Deese's

contempt hearing, the court opined that "another judge was

required to hold the contempt hearing". A6. The court relied

on the JQC "factual finding" that O'Neal took the above

described "actions in order to intimidate and coerce the

sheriff and his deputies".”? A6.

With regard to this finding the court stated,

Use of the power of the judicial office to issue

orders and to exercise its contempt power in

order to intimidate and coerce other elected

officials violates Canons 2A, 2B, and 3E(1)

and demonstrates wilful [sic] misconduct in

office.

Aé.

Although the court noted the commissioner's statement that it

would reduce O'Neal's "salary was contrary to the express

language of OCGA § 15-10-23(b)",” it determined that,

- In the motion for reconsideration O'Neal stated the following objection

to this finding: O'Neal was never charged with intimidation and coercing or

attempting to intimidate and coerce the sheriff and his deputies and thus she was

never given an opportunity to defend against that specific accusation, in violation

of her due process rights as guaranteed by the Fifth Amendment to the U. S.

Constitution as applicable to the states through the Fourteenth Amendment. She

respectfully submits to this Court that it is now unfair to use such a finding to

determine that she committed willful misconduct in office and thereby violated

Canons 2A, 2B, and 3E(1). Notwithstanding this argument, the record contradicts

the JQC finding and instead shows that the sheriff and his deputies were not

intimidated by the orders and Deese's Rule Nisi Hearing. Deese testified at the

JQC hearing that he told the JQC investigator that he thought the problems with

the Magistrate Court were minor in nature. [FHT p. 205]. Deese admitted under

oath at the JQC hearing, a year after they were issued, that none of the orders had

been served [FHT p. 194, 204]; and the documentary exhibits of O'Neal's

correspondence and her testimony shows that the sheriff and his deputies still do

not properly perform their duties with respect to the Court. A43.

The statute provides that no "magistrate's compensation or supplement

shall be decreased during any term of office". A6.

16

obtaining felony warrants for the entire board

based upon a clearly unenforceable threat®* »*

* issued in the midst of a political squabble

was not an appropriate or judicious response

by O'Neal.*

Aé.

The court found that O'Neal's obtaining of the arrest

warrants and then her public statement” after they were

dismissed was conduct that violated Canons 1, 2 A, 2 B, and

3 B (4) and was prejudicial to the administration of justice

and undermines public confidence in the impartial

functioning of judicial officers. A6.

Lastly, the court focused on O'Neal's refusai to

"acknowledge that any specific action was improper" and the

= O'Neal testified at the JQC hearing that she was intimidated by the

Board's letter. See supra p. 10.

- Apparently the court did not agree with O'Neal's assertions in her

petition, which argued that the plain language of OCGA 16-10-97 included

"attempted intimidation" within its meaning, and that once the threat was made

and the intimidation attempted the threat did not have to be carried out for a

crime to have occurred. A6.

- In her motion for reconsideration O'Neal advised the court that she did

not obtain felony warrants for the entire board of commissioners based upon "a

clearly unenforceable threat," as proven by the fact that the board carried out the

threat and reduced her salary after the JQC hearing had occurred, the closing

arguments had been submitted, and the hearing record was established. A33.

” As O'Neal pointed out in her motion for reconsideration, at the time the

threat was communicated to O'Neal there was no political squabble existing

between the commissioners and O'Neal. A44.

7 The statement was factually accurate and completely true, as supported

by the record, and is included in the appendix to this petition. A91.

17

fact that she did not "accept personal responsibility for the

difficulties she experienced with the other elected officials of

Peach County." A7. Their opinion ended with this

statement:

We take this refusal into account in

determining that O'Neal's acts of wilful [sic]

misconduct and prejudicial § conduct

demonstrates she is presently unfit to hold

judicial office.

A7.

The court did not address any due process issues

raised in O'Neals petition. A53.

B. Dissenting Opinion

Benham, P.J., Presiding Justice, disagreed with the

majority's opinion that O'Neal should be removed from

office.” After stating that "the drastic action of removing a

judge from office is one that should be taken with great

caution and concern", he said,

When a judge has been elected by the people,

removal from office is tantamount to

impeachment...Judges do not lose their right to

freedom of expression when they take the

bench. In fact, public officials - including

judges - are often times called upon to explain

their conduct in public forums. Our

democratic society is based on a free flow of

information and ideas and we have jealously

guarded this right for as long as the republic

- He did agree with Divisions 1 and 2 of the majority's opinion , but

disagreed with Divisions 3 and 4, and the majority's decision to remove O'Neal

from office. A8.

18

has existed. Donning a robe does not strip a

judge of freedom of expression.

The majority opinion does not state how the

statement by the judge in the local paper

violated the Code of Judicial Conduct or

undermined public confidence in the office.

Judges are accountable to the public and they

should not be unduly punished for explaining

their actions to the public. In the absence of a

showing that the statement by the judge

violated a specific provision of the Code of

Judicial Conduct, I must disagree with the

majority's determination.

AY.

Justice Benham also disagreed with the majority's

opinion in finding O'Neal unfit to hold judicial office on the

basis that she "refused to acknowledge that any specific

action was improper" and did not "accept personal

responsibility for the difficulties she experienced with the

other elected officials of Peach County". He commented

further on this part of the majority's opinion and stated,

This statement is a slim reed indeed upon

which removal from office is justified. We

must keep in mind that, while the actions

taken by the judge were unauthorized, she

sought to have done nothing more than was

provided for under law. Therefore, I disagree

with the majority's determination in Division 4

that refusal to admit fault is justification for

removal from office.

“ ens “Calan 5 chew

19

AY.

In her motion for reconsideration, which was denied

by the court on March 30, 1995, O'Neal challenged the court's

opinion with respect to her public statement on First

Amendment grounds, and the court's consideration of her

refusal to acknowledge that any specific action was improper

and her refusal to accept personal responsibility for the

difficulties she experienced with the other elected officials of

Peach County on Fifth Amendment grounds. A45. Also, In

her motion for reconsideration, O'Neal challenged on Fifth

Amendment grounds the lack of due process accorded her by

the JQC, and the denial by the JQC of the motion for

continuance presented by her attorney. A48..

REASONS FOR GRANTING THE WRIT

I. This case raises issues of exceptional legal

importance for judges who express public opinion

about social, political, or governmental matters.

A. The Supreme Court of Georgia violated a

judge's right to freedom of expression in

contravention of the First Amendment to

the United States Constitution by removing

her from office for making a truthful public

statement about her difficulties with other

elected county officials, who had violated

the law and failed in the performance of

their statutory duties.

The result of the decisions below is that judges in

Georgia who speak out against corruption, malfeasance,

misfeasance, or nonfeasance, committed by elected or

non-elected government officials, or who "explain their

20

conduct in public forums",”’ risk being removed from office

at the arbitrary or retaliatory whim of those in power, while

judges who remain silent have a better chance at remaining in

office because of their silence.

Moreover, as a published opinion, the decision below

by the Supreme Court of Georgia is likely to receive

widespread study and consideration throughout the State of

Georgia and the nation. Given the novel nature of the facts

and the presence of a First Amendment issue, and the few

reported cases involving removal of a judge for conduct

involving freedom of speech, the case could be used to

unjustifiably restrict the First Amendment rights of judges.

Accordingly, its misapplication by the courts and potential

chilling effect upon judges who might otherwise express their

opinion with respect -to "matters of legitimate public

concern" is significant.

In this case, the First Amendment issue is similar to

the one involving an elected Texas Justice of the Peace who

brought suit in federal court against the Texas Commission

on Judicial Conduct and its commissioners for a public

reprimand of him for making statements critical of the

administration of the county judicial system. Scott v.

Flowers, et al., 910 F.2d 201 (5th Cir. 1990). In Scott, the

- Quoting from Justice Benham's dissent. A8.

” Quoting from Scott v. Flowers, et al., 910 F.2d 201 (Sth Cir. 1990).

- Soon after taking office, Scott became concerned about what he

perceived to be an injustice in the administration of the county court system.

Apparently, the great majority of defendants who appealed their traffic offense

convictions from justice or municipal courts to the Fort Bend County

Court-at-law during Scott's term in office succeeded in having the charges against

them dismissed or the fines sharply reduced.' This practice, Scott believed,

unfairly allowed those "in the know" to violate the traffic laws repeatedly and

with impunity while penalizing less sophisticated individuals who committed the

same offenses.

21

court held "that the Commission could not constitutionally

reprimand Scott for making public statements critical of the

court-at-law and the district attorney's office".

Scott, 910 F.2d at 213.

In September 1983, Scott took his concerns to the local government and

the citizenry by writing an "open letter" to county officials. In the letter, Scott

attacked the district attorney's office and the county court-at-law for dismissing so

many traffic ticket appeals and called upon the county officials to offer

suggestions to remedy the problem. If the county refused to change this practice,

Scott concluded, the public at least should be made aware of it, and the

court-at-law "would be really busy then."?

The letter was circulated to the local press and prompted several

newspaper articles. It also attracted the attention of Thomas Culver, one of the

judges of the court-at-law, who wrote Scott an angry letter criticizing him for not

raising his concerns privately. Eventually, both the newspaper articles and

Culver’s letter found their way into the files of the Texas Commission on Judicial

Conduct (the "Commission"). *

In November 1983, the Commission's executive director, defendant

Robert C. Flowers, advised Scott by letter that he had been the subject of several

complaints received by the Commission.‘ Scott responded to the complaints both

in writing and in person, having been invited by Flowers to appear informally

before the Commission.

On March 19,1984, the Commission issued a formal public reprimand

of Scott. After first acknowledging that Scott's intentions were good and his

personal integrity was not at issue, the Commission then chided him for being

"insensitive" in certain "written and oral communications" addressed both to the

litigants in his courtroom and to the public at large. Such "insensitivity," the

Commission stated, was inconsistent with the proper performance of Scott's duties

as justice of the peace and served only to "cast public discredit upon the

judiciary." The Commission concluded the reprimand with a warning, advising

Scott to be "more restrained and temperate in written and oral communications in

the future.”

Although the Commission failed to cite any examples of Scott's alleged

insensitivity to litigants,’ it was quite specific in identifying the public comments

it found to be objectionable. The Commission criticized Scott both for his

statement in the open letter that the county court-at-law "would be really busy" if

the public realized that an appeal of a traffic ticket was tantamount to a dismissal

and for his comment to a reporter, in connection with the letter, that "the county

court system is not interested in justice." °

Scott v. Flowers, et al., 910 F.2d 201 (5th Cir. 1990).

22

The public statement issued by O'Neal, which the

court found violated the Code of Judicial Conduct, was a very

tempered expression of the facts leading up to and the reasons

for her past official actions. It was the type of speech that

falls well within the core concepts of First Amendment

protection. O'Neal's removal from office was based in whole

or in part on her use of such speech, and the court, without

explaining how such speech violated the Code of Judicial

Conduct or undermined public confidence in the judiciary or

her office has violated her First Amendment Rights.”

II. This case raises a novel issue of great legal

significance for judges who are called before

judicial disciplinary bodies on charges of

misconduct.

A. The Supreme Court of Georgia violated a

judge's due process rights in contravention

of the Fifth Amendment to the United

States Constitution by removing her from

office for refusing to acknowledge that any

specific action she had taken was improper

and for refusing to accept personal

responsibility for the difficulties she

experienced with the other elected officials

of Peach County, who had violated the law

and failed in the performance of their

statutory duties.

The decision below by the Supreme Court of Georgia,

standing as a precedent decision, will put judges in Georgia in

risk of being removed from office if they are charged with

misconduct and they refuse to acknowledge that any specific

action they have taken was improper or refuse to accept

ad See Justice Benham's dissent. A9.

23

personal responsibility for the difficulties they have

experienced, or they deny the charges against them. The

decision is oppressive and coercive, and it negates any notion

of fundamental fairness in violation of the due process clause

of the Fifth Amendment.

The Supreme Court of Florida has recently expressed

the following opinion concerning judges who refuse to admit

wrongdoing or refuse to express remorse: "Every judge who

believes himself or herself truly innocent of misconduct has a

right -- indeed, an obligation -- to express that innocence to

the Commission ..." Inquiry Concerning A Judge No, 93-62,

RE: P. Kevin Davey, Supreme Court of Florida (1994).

The Supreme Court of Georgia previously adopted a

statement with respect to denial of guilt and remorsefulness,

which in part states:

Can it be said that one who denies guilt and,

therefore, is not remorseful for his wrongdoing

has been rehabilitated? The question is best

analyzed and answered by the logic of In the

Matter of Hiss, Mass. 333 NE2d 429, 437

(1975). ‘Simple fairness and fundamental

justice demand that the person who believes he

is innocent though convicted should not be

required to confess guilt to a criminal act he

honestly believes he did not commit. For him,

a rule requiring admission of guilt and

repentance create a cruel quandary: he may

stand mute and lose his opportunity; or he may

cast aside his hard retained scruples and,

paradoxically, commit what he regards as

perjury to prove his worthiness to practice law.

24

Men who are honest would prefer to relinquish

the opportunity conditioned by this rule ..

In The Matter Of Mitchell, 249 Ga. 280 (290 SE2d 426)

(1982).

In this case, the record substantially shows that O'Neal

sincerely and genuinely believed her conduct to be correct

given all the relevant circumstances. Her refusal to

acknowledge any improper action or to accept personal

responsibility for the difficulties she experienced with the

other elected Peach County officials is a protected right

guaranteed by the Fifth Amendment.

Accordingly, the decision by the court to remove

O'Neal from office, which was partially based on her refusal

to acknowledge tliat any specific action taken by her was

improper and her refusal to accept personal responsibility for

the difficulties she experienced with the other elected officials

of Peach County, violated the Fifth Amendment to the U. S.

Constitution as applicable to the states through the Fourteenth

Amendment.

Ill. This case raises the issue of adequacy of

legal counsel for judges called before

judicial disciplinary bodies on charges of

misconduct.

A. The Supreme Court of Georgia violated a

judge's due process rights in contravention

of the Fifth Amendment to the United

States Constitution by removing her from

office while the hearing record relied upon

for the removal determination showed that

she was denied adequate legal counsel at the

hearing.

25

This case presents an extremely gross example of

inadequate legal representation and ineffective assistance of

counsel. The factual background was set forth earlier in this

petition.” Briefly, O'Neal was notified by her attorney's

office on September 26, 1994, that she would need to find

substitute counsel to attend the pre-trial conference scheduled

for September 27, 1994. She was able to make arrangements

with another attorney to attend the conference. The substitute

counsel also appeared with O'Neal two days later at the

hearing on September 29, 1994.

At the hearing on September 29, 1994, substitute

counsel moved for a continuance. He made the following

points unequivocally clear, as shown in the record: he was

unprepared to proceed; he believed that he could not

adequately represent O'Neal; and he thought he would be

ineffective. The JQC denied his motion. At that point there

were thousands of pages of documents and exhibits, and

hundreds of pages of depositions in the case. The record was

exceptionally voluminous. Most importantly he knew

virtually nothing about the witnesses or his client. He could

not cross-examined the prosecution witnesses effectively

because he did not have a meaningful opportunity to read the

case documents or to discuss the case with O'Neal. For the

same reason he could not present an adequate case for the

defense.

It was under those very unfair conditions that the JOC

hearing record was produced that ultimately the Supreme

Court of Georgia used to form their opinion. Thus, O'Neal

was removed from office on the basis of a hearing record that

is tainted by grossly inaccurate and incomplete information,

and misstatements of fact.

41

See supra p. 12-13.

26

Accordingly, O'Neal was denied the most basic

notions of fundamental fairness by not being accorded an

opportunity to acquire adequate legal representation for the

JQC hearing, and thus her Fifth Amendment Rights were

violated.

CONCLUSION

The Petition for Writ of Certiorari should be granted

for the reasons set out above.

Respectfully Submitted,

Linda O'Neal

Petitioner, pro se

Route 1, Box 478

Fort Valley, Georgia 31030

(912) 825-1678

Al

IN THE SUPREME COURT OF GEORGIA

Decided March 17, 1995

INQUIRY CONCERNING

A JUDGE # 94-70

PER CURIAM.

Following an investigation and formal hearing, the

Judicial Qualifications Commission ("JQC") recommended

that respondent Judge Linda O'Neal, Chief Magistrate of

Peach County, be removed from office. We accept the

recommendation.

The JQC received fifteen complaints regarding the

conduct of Judge O'Neal. The JQC investigated the

complaints and issued a Notice of Formal Proceedings, which

set forth six separate charges.

The evidence before the Commission showed that

O'Neal had won a contested election for the office of Chief

Magistrate of Peach County, unseating the incumbent of

sixteen years. The evidence also showed a pattern of an

uncooperative working relationship between O'Neal and the

County Board of Commissioners.

The evidence relating to the most serious charges

showed that on September 13, 1993, O'Neal issued four

separate orders to the sheriff and each of his deputies.

Collectively, these orders required the sheriff and his deputies

to comply with the provisions of OCGA § 15-10-100 (b),

which requires a sheriff to perform the duties of constable if

no provision is made for appointment of constables, and

A2

OCGA § 15-10-102, which sets forth the powers and duties

of constables.' O'Neal sent the orders to Deputy Deese at the

Sheriff's Department to serve. When Deese refused to serve

the orders, O'Neal issued an order directing the coroner to

serve the orders. The coroner responded by a letter that he

was unauthorized to serve the orders. O'Neal then issued a

Rule Nisi to determine whether Deese should be held in civil

contempt and a Rule Nisi for criminal contempt against the

coroner. At the civil contempt hearing on September 23,

1994, O'Neal stated she was the plaintiff and called and

cross-examined Deese. O'Neal verbally issued the orders to

the sheriff's deputies, the majority of whom were in

attendance, and stated that Deese was purged of contempt.

On September 24, 1994, O'Neal issued an indefinite stay with

respect to the coroner's hearing.

Later that same day, at a called meeting, the Board

publicly read a letter to O'Neal in which the Board stated,

We have decided to give you 30 days to see if you can

get your act together. If you continue with your

present attitude, causing problems and conflict in the

county government, we will have no choice but to

recind [sic] your salary increase and return you to the

original salary granted to you by the previous

commissioners.’

: The statutorily mandated powers and duties of the sheriff in the absence

of an appointed constable are to attend regularly all sessions of magistrate court;

to pay promptly money collected to the magistrate court; to execute and return all

warrants, summonses, executions, and other processes directed to them by the

magistrate court; and to perform such other duties as are required by law. OCGA

§ 15-10-102.

, The present Board had given O'Neal a $10,000 increase, after the

previous commissioners had reduced O'Neal's salary $20,000 from that given her

predecessor.

A3

Relying upon this statement, O'Neal obtained felony warrants

from a magistrate from a distant county, two months after this

statement was made, against the members of the Board for

intimidation of a court officer in violation of OCGA §

16-10-97. O'Neal held the warrants in her office for

approximately a week before having them served. The

District Attorney of Houston County was appointed special

prosecutor and ultimately dismissed the warrants. Following

the dismissal, O'Neal issued a lengthy public statement

justifying her actions in seeking the warrants and detailing

her disputes with the board of commissioners and the sheriff.

The Judicial Qualifications Commission, following a

hearing, issued its findings and recommendations. The

Commission found that four charges had been proven by

clear and convincing evidence,’ that such conduct constitutes

a violation of Canons 1, 2 (A) and (B), 3B (4) and (7), and 3E

(1), and recommended that O'Neal be removed from office.

1. Discipline may be imposed only upon a showing

by clear and convincing evidence, JQC Rule 7 (e), that the

judge engaged in "willful misconduct in office, willful and

persistent failure to perform the duties of a judge, habitual

intemperance, or conduct prejudicial to the administration of

justice which brings the judicial office into disrepute." JQC

Rule 4 (b).* We interpret "willful misconduct in office" to

mean actions taken in bad faith by the judge acting in her

judicial capacity. "Conduct prejudicial to the administration

of justice" refers to inappropriate actions taken in good faith

. The JQC found that allegations relating to one charge were arguably

within a magistrate's duties and, standing alone, were insufficient to warrant

disciplinary action.

% A judge may also be removed from office if he or she is laboring under

a “disability that seriously interferes with the performance of the judge's duties

which is or is likely to become permanent." JQC Rule 4 (b). That provision is

not involved in this matter.

A4

by the judge acting in her judicial capacity, but which may

appear to be unjudicial and harmful to the public's esteem of

the judiciary. Prejudicial conduct may also refer to actions

taken in bad faith by a fudge acting outside her judicial

capacity. Whether discipline should be imposed and the

severity of discipline must be

determined through a reasonable and reasoned

application of the text [of the Code of Judicial

Conduct] and should depend on such factors as the

seriousness of the transgression, whether there is a

pattern of improper activity, and the effect of the

improper activity on others or on the judicial system.

Georgia Code of Judicial Conduct, preamble (1994). With

these principles in mind, we examine the allegations of

misconduct. ,

2. O'Neal's orders of September 13, 1994, directed

the sheriff and his deputies to perform the very duties the law

imposes. O'Neal contends that the orders address her concern

over a lack of courtroom security, delays by the sheriff in

serving warrants and in turning over money collected by the

sheriff's department. She characterizes the orders as a

"remedial form of notice" to make her court officers aware of

their responsibilities. She also contends that such orders are

authorized by Ga. Const. of 1983 Art. VI, Sec. I, Par. IV and

OCGA § 15-1-3 (4), which provides that every court has the

power "to control . . . . the conduct of its officers."

Paragraph four of OCGA § 15-1-3 isa codification of

a power inherent in the courts. Lowe v. Taylor, 180 Ga. 654,

658 (180 SE 223) (1935). The inherent power of a court

should not be used as a weapon in political power struggles,

but it "must be carefully preserved" and "cautiously used."

AS

Grimsley _v. Twiggs County, 249 Ga. 632, 634 (1982).

Reliance upon a court's "inherent power" is inappropriate and

unnecessary where specific remedies exist. See McCorkle v.

Judges of Superior Court, 260 Ga. 315, 316 (392 SE2d 707)

(1992) ("inherent power is not a sword but a shield").

The appropriate remedy to require the proper

performance by an official of a statutorily imposed duty is to

seek a writ of mandamus. See Grimsley, 249 Ga. at 632

("[mJandamus is the proper ‘remedy to compel a public

officer or a county board to perform a duty imposed by

law"), quoting Mattox v. Board of Education, 148 Ga. 577,

581 (97 SE 532) (1918); OCGA § 9-6-20. Although these

orders appear to be in the nature of mandamus, a magistrate

court, does not have the power to issue writs of mandamus,

Ga. Const. Art. VI, Sec. I, Par. 4, nor was the required notice

given or hearing held, OCGA § 9-6-27. O'Neal would have

certainly been authorized to file a petition for mandamus in

the superior court, but she was not authorized to issue an

order requiring the performance of an official duty. See

McCorkle, 260 Ga. at 317 n. 4 (Hunt, J., concurring) (remedy

for judges of inferior courts for whom county has failed to

appropriate necessary funds for operation of court is limited

to mandamus in the superior court). We thus find O'Neal

exceeded the authority vested in the magistrate court in

issuing orders to require court officers to comply with their

statutorily imposed duties.

Additionally, a review of the transcript of the hearing

on the rule nisi directed toward Deese demonstrates that

O'Neal had been become personally embroiled in the matter

and, therefore, under Dowdy v. Palmour, 251 Ga. 135, 142

(304 SE2d 52) (1983), another judge was required to hold the

contempt hearing. See also Canon 3E (1) ("Judges shall

disqualify themselves in any proceeding in which their

A6

impartiality night [sic] reasonably be questioned"). The JQC

made the factual finding that O'Neal took these actions in

order to intimidate and coerce the sheriff and his deputies.

Use of the power of the judicial office to issue orders and to

exercise its contempt power in order to intimidate and coerce

other elected officials violates Canons 2A, 2B, and 3e (1) and

demonstrates wilful [sic] misconduct in office.

3. The statement by the Board of Commissioners that

it would reduce her salary was contrary to the express

language of OCGA § 15-10-23 (b) (no "magistrate's

compensation or supplement shall be decreased during any

term of office"). However, obtaining felony warrants for the

entire board based upon a clearly unenforceable threat issued

in the midst of a political squabble was not an appropriate or

judicious response by O'Neal. See Canon 2A (Judges...

"shall act at all times in a manner that promotes public

confidence in the integrity and impartiality of the judiciary").

Following the dismissal of the felony warrants, O'Neal issued

to a local paper a written public statement in which she

detailed the circumstances leading up to her seeking the

felony warrants. The statement appears to be an attempt to

influence public opinion in her favor and against other Peach

County officials, including the sheriff and board of

commissioners. Such conduct violates Canons 1, 2A, 2B,

and 3B (4) and is prejudicial to the administration of justice

and undermines public confidence in the impartial

functioning of judicial officers.

4. O'Neal refused to acknowledge that any specific

action was improper; nor did O'Neal accept personal

responsibility for the difficulties she experienced with the

other elected officials of Peach County. We take this refusal

into account in determining that O'Neal's acts of wilful [sic]

misconduct and prejudicial conduct demonstrate she is

A7

presently unfit to hold judicial office.’ Therefore, we order

that Judge Linda O'Neal, Chief Magistrate of Peach County,

be removed from office.

Removal from office,

All the Justices concur. except Hunt, CJ. not

participating, and Benham, P.J.. who concurs in part_and

i

After a review of the entire record, we fi

have not been proven by clear and convincing evi

cumulative; therefore, they form no independent

nd that the remaining charges

dence or that they are

basis for our decision.

CRN, Ca any

Eaten ways ‘

EL SET Meee NS Le eR

A8

Inquiry Concerning a Judge #94-70

BENHAM, Presiding Justice, dissenting.

While I agree with Divisions | and 2 of this court's

opinion, I cannot agree with Divisions 3 and 4; therefore, I

must respectfully dissent.

The drastic action of removing a judge from office is

one that should be taken with great caution and concern.

When a judge has been elected by the people, removal from

office is tantamount to impeachment; therefore, the violations

of the Code of Judicial Conduct should be proven by "clearn

and convincing" evidence. Divisions | and 2 of the majority

opinion clearly show a violation of the Code of Judicial

Conduct and I concur in those determinations. However, my

concurrence dissolves upon reaching Divisions 3 and 4 of the

majority opinion. In Division 3, the majority states:

The statement [an account by the judge in the local

newspaper of what transpired and her motivations for

taking the actions she took] appears to be an attempt

to influence public opinion in her favor and against

other Peach County officials, including the sheriff and

board of commissioners. Such conduct violates

Canons 1, 2A, 2B, and 3B(4) and is prejudicial to the

administration of justice and undermines public

confidence in the impartial functioning of judicial

officers.

Judges do not lose their right to freedom of expression when

they take the bench. In fact, public officials - including

judges - are often times called upon to explain their conduct

in public forums. Our democrataic society is basedon a free

A9

flow of information and ideas and

we have jealously guarded

this right for as long as the republic has existed. Donning a

robe does not strip a judge of freedom of expression.

The majority opinion does not State how the statement

by the judge in the local paper violated the Code of Judicial

Conduct or undermined public confidence in the Office.

Judges are accountable to the public and they should not be

unduly punished for explaining their actions to the public. In

the absence of a showing that the statement by the judge

violated a specific provision of the Code of Judicial Conduct,

I must disagree with the majority's determination as to

Division 3.

In Division 4 of its opinion, the majority apparently

finds evidence of aggravation and states:

O'Neal refused to acknowledge that any specific

action was improper; nor did O'Neal accept personal

responsibility for the difficulties she experienced with

the other elected officials of Peach County. We take

this refusal into account in determining that O'Neal's

acts of wilful misconduct and prejudicial conduct

demonstrate she is presently unfit to hold judicial

office.

This statement is a slim reed indeed upon which removal

from office is justified. We must keep in mind that, while the

actions taken by the judge were unauthorized, she sought to

have done nothing more than was provided for under law.®

Therefore, I disagree with the majority's determination in

6

The judge sought to have the

Prevent the Board of Commissioners

salary.

sheriff attend the sessions of court and to

from reducing her Statutorily-mandated

Al0

Division 4 that refusal to admit fault is justification for

removal from office.

The decision of the court follows the recommendation

of the Judicial Qualifications Commission; however,

noticeably absent - though I recognize it is not required by

the rules governing the JQC - is a finding by the JQC as to

why some lesser punishment is not applicable. In the five

years I have served on the Supreme Court of Georgia, this

court has never seen fit to remove a judge from office.

Instead of ordering this judge from office, I would remand

the case to the JQC for a finding as to why lesser punishment

is not appropriate.

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BEFORE THE COMMISSION

ON JUDICIAL QUALIFICATIONS

INQUIRY CONCERNING A JUDGE #94-70

JUDGE LINDA O'NEAL DOCKET NO. 94-70

FINDINGS AND RECOMMENDATIONS

OF THE COMMISSION

A.

STATEMENT OF THE CASE

This matter originated in December 1993 when news

articles appeared in The Ledger-Tribune (Peach County), The

Macon Telegraph and The Atlanta Journal-Constitution

publicizing the arrest of all five (5) members of the Peach

County Commission pursuant to a felony warrant requested

by Linda O'Neal, the Chief Magistrate of Peach County,

Georgia (hereinafter "Respondent") and issued by J. Kendall

Jordan, the Chief Magistrate of Hart County, Georgia. [R.

1-6].

Almost immediately after the publication of such

articles, the Commission received a total of fifteen (15)

complaints from citizens of Peach County expressing

concern, and in some instances outrage, over the conduct of

the Respondent. [R. 7-26].

As more fully shown in said complaints, these

citizens characterized Respondent and/or her conduct as

"overstepping her boundaries; an insult to the county,

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disturbing; an embarrassment to the community; an attempt

to intimidate and bulldoze other county officials; out of

control; lost touch with reality; stumbling from one

controversy to another; negative publicity harmful to the

county; deeply concerned and outraged; and conduct very

inappropriate to her office."

By letter dated January 25, 1994, Charles Bartlett,

Chairman of the Peach County Commission, advised the

Commission of a series of continuing problems between

Respondent and various county officials during Respondent's

first year in office and expressed the opinion that the Judge

had clearly abused the powers of her office; been an

embarrassment to the people of Peach County; and could not

be effective in her position over the remaining term of her

office. [R. 29-43].

By letter dated January 10, 1994, the Commission

provided copies of the thirteen (13) complaints received as of

that date to Respondent and instructed her to meet with the

Commission on Friday, January 28, 1994. [R. 27-28].

Copies of the Bartlett letter and additional complaint were

subsequently provided to Respondent. Respondent met with

the Commission as directed; denied the allegations made

against her, both orally and in writing; and_ stated

unequivocally that she had at all times adhered to the highest

standards of judicial conduct. [R. 44-45].

Following this conference and by letter dated January

31, 1994, Respondent was notified that the Commission had

voted to investigate the complaints filed against her and

advised of her rights under Commission Rule 4. [R. 46-47].

By letter dated February 11, 1994, Respondent adopted and

incorporated by reference her letter of January 28, 1994 and

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again denied any willful misconduct in office or any conduct

prejudicial to the administration of justice which brings the

judicial office into disrepute. [R. 48].

Upon completion of its investigation, the Commission

determined that Formal Proceedings should be instituted and

a Notice of Formal Proceedings was mailed to Respondent

by certified mail on March 31, 1994. [R. 49-53].

By letter dated April 11, 1994, the Commission

transmitted to Respondent all materials required by Rule

8(a). [R. 54].

On or about May 4, 1994, Respondent's Answer to

the Notice of Formal Proceedings generally denying all

allegations was timely filed. [R. 55-65]. Although this

answer contained numerous special defenses, no ruling was

sought and none was made respecting the same, and the

matter was subsequently heard by the full Commission on its

merits’.

A pre-hearing conference was scheduled for

September 27, 1994 by Judge Hugh Lawson, the judicial

Commission member designated by the Chair to preside in

this matter. A transcript of said conference is included in the

record being transmitted to the Clerk of this court

simultaneously with this pleading. [R. 66-81].

Immediately prior to the scheduled pre-trial

conference, Respondent filed in this Court an emergency

; Pursuant to the provision of Rule 1(d), Judge Robert B. Struble, a

former judicial member of the Commission, was appointed to serve in lieu of

Judge Alice D. Bonner, who voluntarily recused due to a prior partnership with

counsel for the Commission.

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motion for a continuance of the scheduled pre-trial

conference, as well as the Formal Hearing then scheduled to

begin on September 29, 1994. [R. 82-87]. This Motion was

opposed by the Commission [R. 88-117], and by order dated

September 26, 1994, such Motion was denied without

opinion. [R. 118].

At the outset of the Formal Hearing, Respondent's

Motion to Recuse [R. 119-123] and her oral motion for

continuance were denied. [FHT 1-18]. The complete

transcript (445 pages), together with some 168 exhibits and 6

Defendant's exhibits received in evidence, is also included in

the record being transmitted to the Clerk of this Court

simultaneously with this pleading. To avoid confusion, this

Formal Hearing transcript will hereinafter be cited as [FHT p.

3

B.

SUMMARY OF THE EVIDENCE

At the Formal Hearing, Commission Counsel

presented five (5) live witnesses; five (5) witnesses by

deposition; and introduced 168 exhibits. Respondent was her

only witness and introduced only six (6) exhibits

[unnumbered "Defendant's exhibits."] The evidence thus

presented can be summarized as follows:

Respondent, a non-lawyer, who ran for office on a

political platform against government corruption and in favor

of change [Closing Statement of Respondent, p. 2] and who

Prior to the hearing, depositions were taken and original transcripts of

those introduced into evidence are likewise being transmitted to the Clerk of this

Court simultaneously with this pleading.

Ral OG Bel elas i

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apparently has no understanding of the proper role and

function of a judge, has been at war, both privately and

publicly, with almost every other elected official in Peach

County, Georgia, virtually since the day she took office in

January 1993. This longstanding battle was initially

conducted through correspondence in which Respondent

made repeated and almost continuous demands on various

County officials. [Ex. 1-70]. The battle became more

intense in September 1993 when Respondent issued a set of

four (4) identical orders to each and every employee of the

Sheriff's Department of Peach County, Georgia (some 56 in

number), regardless of the position held by such employees.

[FHT 190; Ex. 71]. The issuance of such orders appears to

be beyond the power and authority of a magistrate (O.C.G.A.

§ 15-10-2), but in any event, there is absolutely no evidence

in this record that the Sheriff's Department had ever refused

to serve and/or deliberately delayed the service of any papers

issuing from the Magistrate Court. Obviously, the Sheriff's

Department has other duties to perform and is not required to

be available to the Magistrate Court at the whim of the

Magistrate. In fact, the uncontradicted testimony of the

Sheriff is that he did not have adequate staff and that often

the persons on whom warrants were to be served were not

able to be located. [FHT 17, 170-174]. Under these

circumstances, the Commission is compelled to conclude that

the issuance of these orders was nothing more than an

intentional misuse of judicial power in a blatant attempt to

intimidate and/or coerce the duly elected Sheriff of Peach

County, as well as every secretary, clerk, radio dispatcher,

and deputy in the Sheriff's Department.

In addition, and as further evidence of this blatant

misuse and abuse of the power of her office, when said orders

were not served promptly enough to satisfy Respondent, she

——-T

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issued a Rule Nisi to the Chief Deputy Sheriff for civil

contempt. [FHT, p.191; Ex. 74]. This was followed by an

order to the County Coroner to serve the Sheriff [Ex. 81], and

when the Coroner, after seeking legal advice, responded that

he lacked authority to serve the orders, he was issued a Rule

Nisi for Direct Criminal Contempt. [Ex. 75, 80 and 166].

The transcript of the Rule Nisi hearing for the Chief

Deputy Sheriff reveals the real motivation for the

Respondent's actions in this instance. Among other things,

she wrongfully denied a motion to recuse filed by counsel for

the accused; acted as both prosecutor and judge; and

completely failed to follow the procedures outlined by this

Court in Dowdy v. Palmour, 251 Ga. 135, in order to meet

due process requirements. In addition, she made no finding

of contempt, but declared that the accused had purged

himself of contempt after each employee of the Sheriff's

Department who was present in court stated his/her name on

the record. However, no written order has ever been entered

in this matter. [Ex. 167; FHT 194].

The contempt hearing for the Coroner was continued

indefinitely after a conference between counsel for the

Coroner and the Respondent. No order of any kind was ever

entered, and so far as appears, this citation is still a pending

matter. [Ex. 86; FHT 86, 143].

The scenario of events surrounding the issuance of

these orders is best understood by reviewing the various

documents evidencing the actions taken by the Respondent

during the period September 13-22, 1993. [Ex. 71-81]. On

September 13, 1993, the ex parte orders were issued [Ex. 71];

on September 20, 1993, Respondent's request for a salary

increase was denied [Ex. 72, 73]; on September 20, 1993

PASE EI BS PIS VRS La OR AIS AER OTE Thy ee

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contempt citations were issued which, among other things,

provided; "Said accused contemner may bring legal counsel

to such hearing if desired" [Ex. 74]; and when both the Chief

Deputy Sheriff and the Coroner refused to serve the ex parte

orders, Respondent appointed her clerk to serve the Chief

Deputy [Ex. 82] and another individual, Brooks Livingston,

to serve the Sheriff [Ex. 79]. The so-called contempt hearing

for the Chief Deputy followed [Ex. 167]; the scheduled

contempt hearing for Coroner Poole was continued; and

Respondent refused a request by the County Commissioners

to meet with them to discuss "the office of Magistrate Judge."

[Ex. 83, 84].

This bizarre series of events was followed by the

County Commissioners mailing the Respondent a copy of a

statement read at the Commission meeting which she refused

to attend [Ex. 85], and Respondent's rather curt reply in

which she characterized the statement as "diatribe." [Ex. 81].

It should be noted that nowhere in this reply or elsewhere in

this record is there any mention of the alleged "threat" which

subsequently gave rise to the felony warrants Respondent

obtained against all five (5) County Commissioners in

December 1993 for an alleged violation of O.C.G.A. §

16-10-97. It should also be noted that, for whatever reason,

from and after the September 27, 1993 letter, Respondent

always signed her correspondence over the title "The

Honorable Linda O'Neal." [Ex. 87 forward].

Respondent's long running battle with the County

Commission continued unabated. After successfully getting

the Commission to designate the September 24, 1993

statement as "official action" and without further discussion

with the Commission, Respondent, by letter dated November

15, 1993, forwarded a copy of the September 24, 1993

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statement to the District Attorney of the Macon Judicial

Circuit and requested that the matter be presented to the

Peach County Grand Jury. [Ex. 101]. Because the District

Attorney did not act on this request with the promptness

which Respondent felt was appropriate under the

circumstances, she concluded, "I was being stonewalled."

[FHT 356]. Respondent testifies she thereafter consulted a

Judge Hughes in Twiggs County; Danny Porter, the District

Attorney in Gwinnett County; a Judge Judy Cooper from

Clay County; Judge Wayne Purdom; and some unnamed

individua in the Attorney General's Office concerning the

possibility of issuing warrants against the Commissioners,

and while each felt her actions to be justified, nevertheless,

all refused to issue the requested warrants. [FHT 357-364].

Apparently determined to find some judicial officer

who would issue felony warrants against the five (5)

individuals constituting the governing authority of Peach

County based solely upon the statement of September 24,

1993, Respondent, without consulting any other judicial

officer in the entire Macon Judicial Circuit, telephoned

Magistrate Kendall Jordan in Hartwell, Hart County,

Georgia, whom she describes as "a neutral, detached

magistrate" she had met at a seminar in Athens in August or

September of 1993 [FHT 359-361].'°

9

Although Respondent's counsel states in his post-trial memorandum

that "Judge O'Neal is a product of business where you are taught to put

everything in writing to document issues and request" (Closing Statement of

Respondent, p.6) and although the record is replete with letters documenting

practically every action taken by Respondent, including writing some twelve (12)

diffe: j (ex. 55-66), there is

not one single document in this record which even remotely supports

Respondent's uncorroborated testimony concerning the alleged conversations

with other judicial officers.

On cross-examination, Respondent admits that one of the reasons she

went to Judge Jordan was because he had previously discussed with her similar

A20

After faxing her affidavit to Judge Jordan and being

advised that he would issue the requested warrants,

Respondent personally typed the warrants in her office in

Peach County; assigned numbers to each warrant; drove to

Hartwell, Georgia; had the warrants signed by Judge Jordan;

brought the signed warrants back to her office where they

remained unsealed and undocketed until she personally

delivered them to the Sheriff for execution approximately

one (1) week later [FHT 363, 395-397, 433-437];'' and

subsequently sought reimbursement from the County for her

mileage to Hartwell claiming it was incurred in the

performance of official duties. [Ex. 164; FHT 406].

At approximately 9:00 A.M. on the morning of

December 28, 1993, Respondent personally delivered the

signed warrants to the Sheriff of Peach County. Within

fifteen (15) minutes after the warrants were delivered, the

Sheriff's office began receiving calls from news media all

over Georgia, and the individual County Commissioners

received similar calls even before being told they were being

arrested. [FHT 82-83; 208-209; 243-244; 247].

The Commissioners were subsequently booked and

fingerprinted, but after an investigation by the District

Attorney of Houston County, specially appointed to

investigate the charges, all charges were dismissed. [FHT

83-84]. Immediately following this dismissal, Respondent

problems he had experienced with government officials. (FHT 394). “Other

Judges are more likely to grant a favor requested by another Judge." In Re

Inquiry Relating to Alvord, 847 P.2d 1310 (Kans.1993).

' In answer to a question from Commission Member Blackstock,

Respondent conceded that she did not hold other warrants issued from her office

in December until after Christmas.

A2]

issued a public statement to the Byron Gazette in which she

stated her disagreement with the decision and again sought to

justify her actions in her long running battle with the County

Commission. [Ex. 125; FHT 406].

To say that the activities detailed above generated

publicity may well be the understatement of the day. One

need only examine the news articles in this record [R. 1-6;

Ex. 160] and the complaints filed with the Commission [R.

7-26] to observe the public ridicule, embarrassment and

disgust to which such conduct exposed not only the

Magistrate Court of Peach County, but the entire judicial

system of this State.

The final shot in Respondent's all-out war against the

County Commission occurred only three (3) days prior to the

commencement of the Formal Hearing. At that time,

Respondent filed a civil lawsuit against the Commissioners,

and other county officials, in the Superior Court of Peach

County, Georgia, which contains 292 numbered paragraphs

and 61 typewritten pages and which generally seeks to rehash

many, if not all, of the issues giving rise to this proceeding.

[Ex. 168].

As thus viewed, the personal animosity and political

motivation which obviously prompted a judicial officer to

conduct herself in such a disgusting and demeaning manner

literally leap from the pages of this record. However, if

further evidence is needed, it can best be seen in

Respondent's conversation of October 1, 1993 with County

3 The only reported case construing this provision involves physical

threats related to judicial decision making and does not appear to relate to a

judge's communications c’ interpersonal relations with other elected county

officials or their employees. Moon v. State, 199 Ga. App. 94, 404 S.E. 2d 273

(1991).

A22

Commissioner Jack Taylor. When asked by Commissioner

Taylor why she had reduced the amount previously charged

for serving warrants, Respondent replied with a gesture:

... because you and Charles Bartlett stuck your nose

into something that didn't concern you ... this issue is

between me and the Sheriff. [FHT 241-243].

Commissioner Taylor reported this conversation to Chairman

Bartlett by letter dated October 4, 1993 (Ex. 90), and

although Respondent denies the statement attributed to her by

Commissioner Taylor, the Commission finds the testimony

of Commissioner Taylor and the subsequent documentation

most persuasive.

In sum, the totality of the evidence reveals a judicial

officer bent on retaliation against the governing authorities of

the County in which she served and determined to have her

way irrespective of the disrespect and disgrace her actions

were certain to and did, in fact, bring the judicial office

which she held.

Perhaps no better evidence of this all-powerful,

all-knowing and vindictive attitude can be found than

Respondent's own words. In letters written to the Chairman

of the County Commission on August 23 and August 25,

1993, she said:

... | will not tolerate or allow myself with respect to

my duties and responsibilities to be frustrated,

impeded or inconvenienced by subordinate county

personnel .... This pattern of conduct must cease

immediately .... [Ex. 61, 67].

A23

Most telling, however, are the responses given by

Respondent to a series of questions from members of this

Commission at the close of her testimony [FHT 410-441]",

and her response to a question posed by Judge Lawson:

Q.

Looking back over the history of your tenure

as magistrate of Peach County, all that has

been said here about disputes that you had

with the sheriff, County Commissioners, the

coroner, whomever else you may have

disputed with, today at this point before the

Commission, do you see anything you would

have done differently now in reflecting?

That I would have done anything differently?

Yes, Ma'am. In your judgment today, were all

of your actions justified? Do you think you

acted properly? I don't mean legally, I am

talking about as a matter of judgment, in your

judgment today, do you feel that ... the way

you handled all these problems was the right

way to do it, do you feel that way today?

Yes, sir. [FHT 392, 393].

c.

FINDINGS

Using the Notice of Formal Proceedings as an outline

[R. 49-53], and after considering all the evidence and

° For the sake of brevity, this testimony is not quoted, but this Court is

respectfully urged to give particular attention to the cited portion of the transcript.

ee et ie nae ott

A24

arguments of counsel, this Commission makes and enters the

following Findings:

l.

Charge I and each and every subparagraph thereof has

been proved by clear and convincing evidence. [R. 50-52].

2.

Although the charge delineated in Charge II has been

proven by clean and convincing evidence, Respondent's

conduct in this instance was arguably within the duties of a

magistrate to assist persons desiring to file a claim and

standing alone is insufficient to warrant disciplinary action.

[R. 52].

5

Charges III, IV and V have been proven by clean and

convincing evidence. [R. 52-53].

4.

With respect to Charge VI [R. 53], the conduct

proven constitutes a clear violation of the Code of Judicial

Conduct and the following Canons in particular:

(A) Canon 1 provides:

... Judges shall participate in establishing, maintaining

and enforcing high standards of conduct and shall

personally observe such standards of conduct so that

A25

the integrity and independence of the judiciary may

be preserved.

This Canon is a universal exhortation to every judge to

conduct himself or herself in such a manner as to maintain

and preserve the integrity of the Court on which such judge

sits.

This Respondent failed in this responsibility.

(B) Canon 2A provides:

Judges shall respect and comply with the law and

shall act at all times in a manner that promotes public

confidence in the integrity and impartiality of the

judiciary.

(C) Canon 2B provides:

Judges shall not allow their family, social, political or

other relationships to influence their judicial conduct

... (and) shall not lend the prestige of judicial office to

advance the private interest of the judge .... (Emphasis

added).

A judge misuses judicial power when he or she enters

an order based not on the merits but in retaliation against

someone. In Re Lowrey (Texas Special Court of Review,

June 12, 1991).

This Respondent failed in these responsibilities.

D. Canon 3B(4) provides:

A26

Judges shall be patient, dignified and courteous to ...

others with whom they deal ir their official capacity.

This respondent failed in these responsibilities.

E. Canon 3B(7) provides:

Judges shall not initiate or consider ex parte

communications, or consider other communications

made to them outside the presence of the parties

concerning a pending or impending proceeding,

except that ....

This Respondent failed in these responsibilities.

F. Canon 3E(1) provides:

Judges shall disqualify ... in any proceeding in which

their impartiality might reasonably be questioned,

including instances where

(a) the judge has a personal bias or

prejudice against ... a party; ...

(c)(i) is a party to the proceeding; or (c)(ii) is

acting as a lawyer in the proceeding.

This Respondent failed in these responsibilities.

5.

The conduct here proven, as well as applicable

authorities, demands sanctions of the most severe nature.

a

D.

RECOMMENDATIONS

Commission Rule 14, as promulgated by this Court,

authorizes sanctions ranging from a private reprimand to

removal from office. This Commission views its

responsibility in this regard as perhaps its most serious

function and would never recommend the extreme sanction

of removal from office except in a case where the evidence is

both clear and convincing. As noted by the Supreme Court

of Florida in In re Kelly, 238 So 2nd 565, 569 (Fla. 1970),

Cert. Denied, 401 U.S. 692 (1971), the object of these

disciplinary proceedings is not to inflict punishment, but to

determine whether one who exercises judicial power is unfit

to hold a judgeship.

Measured by this standard, it is the unanimous

opinion of this Commission that the cumulative effect of

Respondent's demonstrated lack of understanding of the role

of the judiciary; her obvious lack of judicial temperament;

and her intentional misuse of judicial powers to advance her

own private interests render he unfit to hold a judgeship.

As so aptly noted by the Florida Supreme Court in In

re Graham, 620 So. 2d 1273, 1277 (Fla. 1993), "a judgeship

is a position of trust, not a fiefdom." Based upon

Respondent's appearances before this Commission and her

obvious lack of understanding of the serious offenses

involved in this proceeding, this Respondent is not likely to

ever understand the difference. Accordingly, she is unfit to

hold judicial office and should be removed.

A28

Additional language from the Graham decision is

persuasive and controlling:

A judge who refuses to recognize his own

transgressions does not deserve the authority or

command the respect necessary to judge the

transgressions of others. We are troubled by the fact

that [the judge] shows no remorse and we can only

presume that if this Court reprimanded him, he would

continue to violate the precepts of the Code of

Judicial Conduct. See: Inre Trettis, 577 So. 2d 1312

(Fla. 1991) (When a Judge continuously acts in a

manner that undermines public confidence, removal

may be required.)

Id at 1276.

CONCLUSION

Standing alone, each individual charge against [the

judge] might not warrant the extreme disciplinary

measure of removal. conduct unbecoming a member

of the judiciary may be proved by evidence of

specific major incidents which indicate such conduct,

or it may also be proved by evidence of an

accumulation of small and ostensibly innocuous

incidents which, when considered together, emerge as

a pattern of hostile conduct unbecoming a member of

the judiciary. Graham at 1275, quoting In Re Kelly,

supra.

In the instant case, Respondent's proven conduct was

motivated by personal bias and animosity; was willful,

deliberate and intentional; and can only be described as a

A29

flagrant abuse and/or misuse of the power and prestige of

judicial office to intimidate and coerce other duly elected

constitutional officers to comply with Respondent's every

whim, wish and desire.

Such conduct cannot be condoned and the totality of

the circumstances brings the judicial office into disrepute.

Accordingly, this Commission recommends the extreme

sanction of removal from office.

This 9th day of December, 1994.

JUDICIAL QUALIFICATIONS COMMISSION

/s/

John E. James, Chair |

/s/

Jerry B. Blackstock

/s/

Dr. Barbara Carter

/s/

Charles A. Harris

/s/

Judge Hugh Lawson

/s/

Bob Reinhardt

/s/

Judge Robert B. Struble

/s/

(Sitting by Designation)

A30

A31

SUPREME COURT OF GEORGIA

Case No. S95A0967 Atlanta, March 30, 1995

The Honorable Supreme Court met pursuant to

adjournment.

The following order was passed:

INQUIRY CONCERNING A JUDGE #94-70

Upon’ consideration of the Motion for

Reconsideration filed in this case, it is ordered that it be

hereby denied.

All the Justices concur, except Hunt, C.J., not

participating, and Benham, P.J., dissents.

SUPREME COURT OF THE STATE OF GEORGIA

Clerk's Office, Atlanta

I hereby certify that the above is a true extract from

the minutes of the Supreme Court of Georgia.

Witness my signature and the seal of said court hereto

affixed the day and year last above written.

/s/

Sherie M. Welch, Clerk

A32

A33

IN THE SUPREME COURT

STATE OF GEORGIA

IN RE INQUIRY CONCERNING A JUDGE #94-70

JUDGE LINDA O'NEAL

MOTION FOR RECONSIDERATION OF JUDGMENT

Comes now, the movant, Linda O'Neal, Chief

Magistrate Judge of Peach County, Georgia, by and through

her attorney, Bruce S. Harvey, and files this motion pursuant

to Supreme Court Rule 47 and requests this Court to

reconsider its Judgment, which ordered that Judge Linda

O'Neal be removed from office, and files said motion on the

following grounds:

1. O'Neal did not issue orders to officials of another

branch of government when she issued orders to her

constables, the sheriff and his deputies, because constables

are part of the judicial branch and subject to the authority of a

magistrate judge.

y I O'Neal did not obtain felony warrants for the entire

board of commissioners based upon "a clearly unenforceable

threat," as proven by the fact that the board has carried out

the threat and reduced her salary.

3. O'Neal was never charged with intimidating and

coercing the sheriff and his deputies, and a finding by the

JQC that such occurred absent an opportunity to present a

A34

defense against said charge, violates O'Neal's due process

rights.

4. Canons 2A, 3B(2), 3C(2), and 3E(1) required or

authorized the actions taken by O'Neal.

5. There is no "clear and convincing" evidence

supported by the record which shows that the administration

of justice was, in fact, prejudiced or that the public's

confidence was undermined as to the impartial functioning of

judicial officers as a result of O'Neal's public statement.

6. O'Neal's First Amendment rights shields her from

disciplinary sanctions for making a public statement.

A The decision to remove O'Neal from office which is

partially based on her refusal to acknowledge that any

specific action was improper or her refusal to accept personal

responsibility for the difficulties she experienced with the

other elected officials of Peach County, is contrary to prior

decisions of this Court and other courts, and violates the Fifth

Amendment to the U. S. Constitution as applicable to the

states through the Fourteenth Amendment.

8. The will of the people in electing O'Neal and their

right to recall should not be abrogated without "clear and

convincing evidence" that she "intentionally committed

serious and grievous wrongs of a clearly unredeeming

nature."

9. It is fundamentally unfair to punish O'Neal by

removal from office in light of the facts of record, as they

provide sufficient reason to seriously question the due

a me

A35

process accorded O'Neal at the JQC hearing and the

adequacy of the resulting evidentiary record.

10. O'Neal's due process rights as guaranteed by the Fifth

Amendment to the U.S. Constitution as applicable to the

States through the Fourteenth Amendment were violated by

the procedures accorded her by the JQC.

11. O'Neal's counsel was deprived adequate time in

which to prepare a defense in violation of her due process

rights.

12. _—‘ There is a clearly noticeable and substantial disparity,

in relation to the alleged misconduct, between the Supreme

Court decisions in other cases and this Court's decision in

regard to O'Neal; and the record does not support that O'Neal

committed any misconduct of a nature or degree as reflected

in these other cases in which the judge was removed from

office.

13. The decision to remove O'Neal from office is an

unusually harsh judgment when compared to the punishment

rendered in other Supreme Court JQC case decisions

involving more serious allegations of misconduct.

14. O'Neal, as the record demonstrates, has not engaged

in a pattern of improper activity.

15. There is no "clear and convincing" evidence as shown

by the record of any harmful effects occurring as a result of

the alleged misconduct.

A36

16. O'Neal, as demonstrated by the record and the brief in

support of this motion, had a rational legal basis and a

justifiable belief for the actions she has taken while in office.

17. As shown by the record, the petition filed in this

Court, and the brief in support of this motion, O'Neal has not

committed any serious transgressions which would warrant

removal from office.

WHEREFORE, movant moves the Court for an order

setting aside said judgment.

This the 27th day of March, 1995.

Respectfully submitted,

/s/

Pete C. Whitlock

Georgia Bar No. 756235

Attorney for Movant

Bruce S. Harvey

Georgia Bar No. 335175

Attorney For Movant

A37

37IN THE SUPREME COURT

STATE OF GEORGIA

IN RE INQUIRY CONCERNING A JUDGE #94-70

JUDGE LINDA O'NEAL

BRIEF IN SUPPORT OF MOTION FOR

RECONSIDERATION

Judge Linda O'Neal respectfully requests this Court in

light of the following presented facts and arguments to

reconsider its Order that she be removed from office. As

Justice Benham so aptly pointed out in his dissent, "the

drastic action of removing a judge from office is one that

should be taken with great caution and concern." "Judges

should not be subjected to the extreme discipline of removal

except in instances where it is free from doubt that they

intentionally committed serious and grievous wrongs of a

clearly unredeeming nature." In re La Motte, 341 So. 2d 513,

517-18 (Fla. 1977). As will be shown O'Neal never engaged

in conduct that would warrant the extreme discipline of

removal from office. This Court, in its opinion, stated that it

would examine the allegations of misconduct with the

following principles in mind:

"Whether disciplinary action is appropriate,

and the degree of discipline to be imposed,

should be determined through a reasonable

and reasoned application of the text and

should depend on such factors as the

seriousness of the transgression, whether there

A38

is a pattern of improper activity, and the effect

of the improper activity on others or on the

judicial system."

Georgia Code of Judicial Conduct, Preamble (1994).

These same principles will also be considered in the

arguments to be presented. It is further stated in the

Preamble of the Code of Judicial Conduct that

"The Canons and Sections are rules of reason.

They should be applied consistent with

constitutional requirements, statutes, other

court rules and decisional law, as well as in

(Emphasis added).

These principles will likewise be included in the arguments

presented.

1. The Court's opinion with respect to O'Neal's orders of

September 13, 1994, directed to the sheriff and his lawful

deputies now provides the guidance that heretofore was

lacking in Georgia's case law. While the cases as cited by the

Court indicate mandamus is the remedy to be used to require

an official to properly perform his statutory duties, other

cases fairly indicate that a court "is vested with the inherent

power necessary to the administration of justice and ‘with all

necessary authority to efficiently and completely discharge

those duties'." Fathers Are Parents Too, Inc. v. Hunstein, 202

Ga. App. 716 (415 SE2d 322) (1991), quoting Wallace v.

Wallace, 225 Ga. 102, 111 (166 SE2d 718) (1969). This

Court has also stated that inherent power "includes the

authority to perform any function reasonably necessary to

effectuate [the Court's] jurisdiction" and "improve the

administration of justice." In The Matter of Teresa S. Oliver,

261 Ga. 850 (413 SE2d 435) (1992), quoting Wallace, supra.

A39

Further, in McCorkle v. Judges of Superior Court, 260 Ga.

315, 316 (392 SE2d 707) (1992) this passage appears:

In Grimsley v, Twiggs County, 249 Ga. 632,

(1982), we acknowledged that the judiciary, as

an independent and co-equal branch of

government, must possess power that is

concomitant with its duty to the public. See

also Miree v. United States, 242 Ga. 126, 132

(249 SE2d 573) (1978) ("Our powers are

equal to our duties.").

Additionally, when this Court referred to McCorkle,

supra, it noted the following statement in that decision,

"inherent power is not a sword but a shield." Also, in

McCorkle this Court stated, "... [I]nherent power does not

give the judicial branch the right to invade the province of

another branch of government. As a principle flowing from

the separation of powers doctrine, it arms the judicial branch

with authority to prevent another branch from invading its

province." McCorkle at 316. This language brings up a very

interesting legal twist to the situation that O'Neal faced. To

O'Neal and the Magistrate Court, the sheriff and his deputies

were constables, as noted by O.C.G.A. 15-10-3(b)(3)(c) ("In

the case of a ... sheriff or sheriff's deputy serving as

constable"); O.C.G.A. 15-10-27(c) (In any county subject to

this code section ... the sheriff and deputies of civil court

shall serve as constables of magistrate court.); and O.C.G.A.

15-10-100(b) ("If no provision is made for the appointment

of constables, the sheriff and his deputies shall perform the

duties of constables."). Constables are created within the law

governing Magistrate Courts and are officers within the

judicial branch, and are not officers within the executive

branch to which the sheriff and his deputies otherwise

A40

belong. O.C.G.A. 15-10-100(a) provides that, ... "the county

governing authority may provide for the appointment of

constables by the chief magistrate. Constables so appointed

shall serve at the pleasure of the chief magistrate....". With

regard to their power of arrest the law states: "Constables

shall exercise the power of arrest only with a warrant or at the

direction of and in the presence of a magistrate or the judge

of another court." O.C.G.A. 15-10-103. Clearly, constables

are officers of the magistrate court subject to the direction

and control of a judge. Even the language which sets forth

their powers and duties suggest that they are subject to the

direction and control of the judge of the magistrate court.

O.C.G.A. 15-10-102. Thus, there is a rational basis for

O'Neal to have believed that when she issued orders to the

sheriff and his deputies that she was not invading another

branch of government but was issuing orders to court officers

within the judicial branch of government and, therefore, was

not exceeding the principles with respect to inherent power as

set fort in Grimsley v. Twiggs County, 249 Ga. 632 (1982)

and McCorkle, supra. See O'Neal's testimony at [FHT p.

332:14]. Accordingly, pursuant to this analysis O'Neal could

not be guilty of using the Court's inherent power in a power

struggle between the branches, because the sheriff and his

deputies by operation of law wears two (2) hats: one within

the executive and one within the judiciary branch of

government. Notably, O'Neal's orders to the sheriff and his

deputies only included the duties that they were to perform

while they were functioning within the judicial branch as

constables. If this argument is considered to be valid then

Canon 3C(2) of the Code of Judicial Conduct also applies,

which states that

"Judges shall require* their staffs, court

officials and others subject to their direction

A41

and control to observe the standards of fidelity

and diligence that apply to the judges and to

refrain from manifesting bias or prejudice in

the performance of their official duties."

(Emphasis added).

O'Neal's orders issued to the Magistrate Court's constables,

the sheriff and his deputies, who are "court officials" or

"others subject to [her] direction and control" simply required

diligence in the performance of their constable duties and

thus would be within her authority to issue as mandated by

the Code of Judicial Conduct. Canon 3C(2).

It is quite understandable how a new judge in office,

as in O'Neal's case, could interpret the case law, statutes, and

Code of Judicial Conduct referenced above, coupled with

Art.. VI, Sec. I, Par. III of the Georgia Constitution of 1983

and O.C.G.A. 15-1-3(4) to mean that orders such as she

issued to her constables, the sheriff and his deputies, were

within her authority to issue.

There is no evidence in the record that she issued any

orders before or after this event which exceeded her

authority, so in this regard the record demonstrates no pattern

of improper activity. In fact, the record demonstrates that

since issuing the orders to the sheriff and his deputies, O'Neal

has used the writ of mandamus to require the proper

performance by an official of a statutorily imposed duty. See

JQC hearing Exhibit 168, dated September 26, 1994.

Interestingly, although six months have elapsed, no trial date

has been scheduled to hear that case. Deese testified that he

never served any of the orders [FHT p. 194, 204], and the

evidence in the record indicates no change with respect to the

sheriff and his deputies performance of their duties, so based

on the record the orders actually had no effect on the sheriff

A42

and his deputies. O'Neal submits that the seriousness of the

transgression, being one of mistaking the status of the law,

and given the context of all relevant circumstances, is minor.

Besides, judges make mistakes as to the status of the law

from time to time, but they are not charged with willful

misconduct and removed from office because of the mistake.

This Court found that O'Neal should have disqualified

herself at Deese's rule nisi hearing. However, O'Neal

respectfully requests this Court to consider her reliance upon

the commentary to Canon 3E(1), which states in part:

"The Rule of necessity may override the rule

of disqualification. For example, a judge

might be ... the only judge available in a

matter requiring immediate judicial action,

such as a hearing on probable cause or a

temporary restraining order..."

At the time the hearing was held, O'Neal was the only

Magistrate Judge in Peach County to hear the matter. She

perceived that the improper performance of constable duties

by the sheriff and his deputies was of such a poor degree that

immediate attention to the matter was necessary. See [FHT

p.330-332, 424]. Therefore, when Deese refused to serve or

order another deputy to serve the four (4) orders outlining the

constable duties she considered it necessary to take

immediate judicial action. As explained in her petition to

this Court, she used the rule nisi hearing as a vehicle to give

Deese a direct order to serve the four (4) orders. If O'Neal

misunderstood the Canon and its commentary in regard to

this matter, the sanction for such misunderstanding would

appear to be something far less than removal from office.

A43

The record evidences no other instances before or

after this one occurrence when it is alleged that O'Neal failed

to disqualify herself and circumstances required

disqualification. Therefore, there is no pattern of improper

activity with regard to this matter. Based on the record there

Fas been no effect on Deese because of O'Neal's failure to

disqualify herself. O'Neal respectfully suggests that since

Deese was purged of contempt the seriousness of the

transgression is minor.

This Court noted the JQC factual finding that O'Neal

issued the orders to the sheriff and his deputies, and held the

rule nisi hearing on Deese to intimidate and coerce the sheriff

and his deputies. O'Neal was never charged with

intimidation and coercing or attempting to intimidate and

coerce the sheriff and his deputies and thus she was never

given an opportunity to defend against that specific

accusation, in violation of her due process rights as

guaranteed by the Fifth Amendment to the U. S. Constitution

as applicable to the states through the Fourteenth

Amendment. She respectfully submits to this Court that it is

now unfair to use such a finding to determine that she

committed willful misconduct in office and thereby violated

Canons 2A, 2B, and 3E(1). Notwithstanding this argument,

the record contradicts the JQC finding and instead shows that

the sheriff and his deputies were not intimidated by the

orders and Deese's Rule Nisi Hearing. Deese testified at the

JQC hearing that he told the JQC investigator that he thought

the problems with the Magistrate Court were minor in nature.

[FHT p. 205]. Deese admitted under oath at the JQC hearing,

a year after they were issued, that none of the orders had been

served [FHT p. 194, 204]; and the documentary exhibits of

O'Neal's correspondence and her testimony shows that the

A44

sheriff and his deputies still do not properly perform their

duties with respect to the Court.

yo O'Neal did not obtain felony warrants for the entire

board of commissioners based upon "a clearly unenforceable

threat," as proven by the fact that the board has carried out

the threat and reduced her salary. She received a salary

increase for the month of November, 1994, which included a

supplemental pay increase of $50.46. Her paycheck for the

month of December, 1994, disclosed a supplemental pay

decrease of $50.46, and such decrease has continued monthly

thereafter. O'Neal's affidavit and pay stubs in support of

these facts is attached hereto as Exhibit "A". Georgia Law

prohibits the reduction of a magistrate's compensation or

supplement during any term of office. O.C.G.A.

15-10-23(b). The board decreased O'Neal's salary after the

JQC hearing had occurred, the closing arguments had been

submitted, and the hearing record was established.

Additionally, O'Neal obtained the felony warrants in

reliance upon the mandate of Canon 3B(2) ("Judges shall be

faithful to the law" and "shall not be swayed by partisan

interests, public clamor, or fear of criticism."). She obtained

the warrants on a good faith belief that a crime had been

committed, as the record supports. She believed that her

personal integrity, oath of office, and respect for the law

required her to seek criminal prosecution and that ignoring

the commissioners’ threat would violate Canon 2A ("Judges

shall respect and comply with the law and shall act at all

times in a manner that promotes public confidence in the

integrity and impartiality of the judiciary."). At the time the

threat was communicated to O'Neal the record reflects that

she was not embroiled in a political squabble with the

DED ATK pet PLY EONS OR HONING INF r EY lly VSAM ONR Aa th00

PEELE LAA ONG SO ATER REESE 4s

A45

commissioners, and that a proper relationship still existed

between them.

O'Neal's public statement following the dismissal of

the felony warrants was a good faith informative factual

statement, as supported by the record. Furthermore, there is

not one scintilla of evidence in the record that shows that the

administration of justice was, in fact, prejudiced or that the

public's confidence was undermined as to the impartial

functioning of judicial officers as a result of O'Neal's

Statement. O'Neal asserts that absent clear and convincing

evidence that such harm occurred that her freedom of speech

rights as guaranteed by the First Amendment to the U. S.

Constitution shields her from disciplinary sanctions for

making the public statement. She respectfully further asserts

that the right of the public to be informed as to the truthful

reasons for her official actions is absolute and must be

observed by her because she holds a position of public trust:

Thus, her breach of this public trust would violate Canon 2A.

3. The record demonstrates that O'Neal sincerely and

genuinely believed her conduct to be correct under all the

relevant circumstances. Her refusal to acknowledge any

improper action or to not accept personal responsibility for

the difficulties she experienced with the other elected Peach

County officials is not shown by clear and convincing

evidence in the record to be a refusal made in bad faith.

The Supreme Court of Florida has recently expressed

the following opinion concerning judges who refuse to admit

wrongdoing or refuse to express remorse: "Every judge who

believes himself or herself truly innocent of misconduct has a

right -- indeed, an obligation -- to express that innocence to

A46

the Commission ..." Inquiry Concerning A Judge No. 93-62,

RE: P. Kevin Davey, Supreme Court of Florida (1994).

This Court has also previously made and adopted a

statement with respect to denial of guilt and remorsefulness,

which in part states:

Can it be said that one who denies guilt and,

therefore, is not remorseful for his

wrongdoing has been rehabilitated? The

question is best analyzed and answered by the

logic of In the Matter of Hiss, Mass. 333

NE2d 429, 437 (1975). ‘Simple fairness and

fundamental justice demand that the person

who believes he is innocent though convicted

should not be required to confess guilt to a

criminal act he honestly believes he did not

commit. For him, a rule requiring admission

of guilt and repentance create a _ cruel

quandary: he may stand mute and lose his

opportunity; or he may cast aside his hard

retained scruples and, paradoxically, commit

what he regards as perjury to prove his

worthiness to practice law. Men who are

honest would prefer to relinquish the

opportunity conditioned by this rule ....'

In The Matter Of Mitchell, 249 Ga. 280 (290 SE2d 426)

(1982).

A47

Moreover, it is respectfully submitted that the

decision to remove O'Neal from office which is partially

based on her refusal to acknowledge that any specific action

was improper or her refusal to accept personal responsibility

for the difficulties she experienced with the other elected

officials of Peach County, violates the Fifth Amendment to

the U. S. Constitution as applicable to the states through the

Fourteenth Amendment.

4, One of the most basic organic rights of the citizens of

Peach County was expressed when they unseated a sixteen

year incumbent and replaced him with Linda O'Neal. O'Neal

respectfully asserts that it is the voters of Peach County who

ought to decide her fate in office, just as they recently did

with respect to Commissioner Jack Taylor who was a witness

and testified at the JQC hearing against O'Neal. Taylor was

defeated in all four precincts and on the absentee ballots

reportedly by a substantial 168 votes out of a total of 870

votes in a special election held on February 7, 1995. One of

the principal issues in that election was the complaint that he

participated in and filed against O'Neal with the JQC.

Moreover, O'Neal as an elected official is subject to recall by

the voters of Peach County. Her removal from office will

result in an interim appointed magistrate to fill the office

vacancy and that magistrate will not be subject to recall.

Therefore, the will of the people in electing O'Neal and their

right to recall should not be abrogated without "clear and

convincing evidence" that she "intentionally committed

serious and grievous wrongs of a clearly unredeeming

nature." In re La Motte, supra. The record simply does not

support such a finding.

A48

5. At the JQC hearing O'Neal attempted to introduce

into evidence indication of positive community support for

her as Chief Magistrate Judge of Peach County. Over eighty

(80) individuals either wrote letters, signed petitions, or

completed favorable court questionnaires, which serve to

significantly counter and offset the apparently solicited

fifteen complaints filed against O'Neal. Copies of this

evidence is attached hereto as Exhibit "B". The JQC refused

to allow admission of this evidence on the basis that it had

not been presented at the pretrial conference. [FHT p.

386-387]. However, counsel with less than 24 hours notice

that he would be responsible for appearing for O'Neal at the

pretrial conference on September 27, 1994, was not aware of

the above evidence. The quantum of evidence in the case

(hundreds of pages of documents and over 450 deposition

transcript pages) made it impossible for him to become

adequately familiar with all of the evidence in such a short

period of time. Counsel advised the JQC on September 29,

1994, at the beginning of the hearing that his short exposure

with the case caused him to believe that he would not be able

to adequately represent O'Neal. [FHT p. 11-17].

Nonetheless, counsel's request for a continuance was denied

and O'Neal was forced to proceed. The JQC offered to

continue the hearing if O'Neal would take a leave of absence

from her office during the continuance. Such a coercive offer

was not acceptable to O'Neal and she declined the offer.

Additionally, O'Neal's motion for directed verdict presented

at the close of the commission's case in chief was denied by

the presiding hearing officer without presenting it before the

entire commission in violation of Rule 1(b) of the Rules of

the Judicial Qualifications Commission. [FHT p. 289, 296].

Such ruling was a ruling on the merits of the case and by the

commission's rules a majority of its membership was

required. Accordingly substantive error resulted and denied

A49

O'Neal due process. It is fundamentally unfair to punish

O'Neal by removal from office in light of these facts, as they

provide sufficient reason to seriously question the due

process accorded O'Neal at the JQC hearing and the

adequacy of the resulting evidentiary record.

6. In O'Neal's petition objecting to the JQC's Findings

and Recommendations and in this brief several issues have

been raised that put into question the adequacy of the JQC

procedures accorded O'Neal in regard to her Fifth

Amendment due process rights as applicable to the state

through the Fourteenth Amendment. As this case

demonstrates there are gross violations of fundamental

notions of due process, which occur as a consequence of the

JQC being investigator, prosecutor, and trier of fact of

judicial complaints. In support of this contention O'Neal

turns to recent developments in the State of Florida. Florida

has recently decided that their JOC process, which is similar

to Georgia's, is lacking in the area of due process as required

by the U. S. Constitution. The Florida Bar Board of

Governors, including members of the combined Bench/Bar

Commission, have voted unanimously (28 to 0) to bifurcate

the JQC. Copies of articles in the Florida Bar News which

address this subject is attached hereto as Exhibit "C".

A A survey of twenty five (25) past JQC cases that

reached the Supreme Court was undertaken to compare the

Supreme Court decision in each of those cases to the decision

this Court has made with respect to O'Neal. A copy of the

survey is attached hereto as Exhibit "D". There is a Clearly

noticeable and substantial disparity, in relation to the alleged

misconduct, between the Supreme Court decisions in the

other twenty five (25) cases and this Court's decision in

regard to O'Neal. The record does not support that O'Neal

A50

committed any misconduct of a nature or degree as reflected

in these other cases in which the judge was removed from

office. Indeed, the record does not even support that O'Neal

committed any misconduct as serious as that reflected in

most of the other cases in which the judge was suspended,

and in some cases only reprimanded.

8. To further demonstrate the abusive political powers to

which O'Neal has been subjected, it should be noted that

immediately following the issuance of this Court's decision,

the Judges of the Superior Court of the Macon Judicial

Circuit issued an ex-parte order authorizing the Board of

Commissioners to take possession of all court papers and

county property currently located in the office of the

Magistrate Court. A copy of said order is attached hereto as

Exhibit "E". A strikingly noticeable aspect of the order is

that the board of commissioners, a separate branch of

government, was being authorized to take possession of

judicial property. | Additionally, Charles Bartlett, the

commission chairman advised William Cooney, deputy court

clerk, on Monday, March 20, 1995, that he was being placed

on leave and that he had to leave the courthouse. A copy of a

letter which was given to Cooney at the time he was placed

on leave is attached hereto as Exhibit "F". Further, the

county marshal threatened Cooney that if he did not leave the

courthouse that he would be arrested for failure to obey a

lawful order.

As shown by the record, the petition filed in this

Court, and this brief, O'Neal had a rational legal basis and a

justifiable belief for the actions she has taken while in office.

A51

Based on the foregoing presented facts and

arguments, and in light of the lessor disciplinary action taken

in the majority of the other cases shown in Exhibit "D", It is

respectfully requested that this Court reconsider its decision

to remove Judge Linda O'Neal from office.

This the 27th day of March, 1995.

Respectfully submitted,

/s/

Pete C. Whitlock

Georgia Bar No. 756235

Attorney for Movant

Bruce S. Harvey

Georgia Bar No. 335175

Attorney For Movant

A52

A53

53IN THE SUPREME COURT

STATE OF GEORGIA

IN RE INQUIRY CONCERNING A JUDGE #94-70

JUDGE LINDA O'NEAL

Comes now, the Petitioner, Linda O'Neal, Chief Magistrate

Judge of Peach County, Georgia, by and through her

attorney, Bruce S. Harvey, and petitions the court to overrule

the FINDINGS AND RECOMMENDATIONS of the

Judicial Qualifications Commission which has recommended

to this court that Petitioner be removed from office, and to

dismiss all charges filed against her by said commission, and

in support of her petition Petitioner respectfully shows the

court the following:

BRIEF IN SUPPORT OF PETITION

I

STATEMENT OF THE CASE

A. Nature Of The Case

This matter - involving disciplinary action to remove

Petitioner from her elected judicial office - is a case of gross

mischaracterization and misstatement of the facts and is a

reckless misrepresentation of truth. Indeed, one of the most

A54

alarming and troubling aspects of the FINDINGS AND

RECOMMENDATIONS of the Commission, as the evidence

clearly shows, is the gross failure to report a straightforward

accounting of the facts as they actually occurred.

Accordingly, the motivations behind this matter are

seriously questioned by Petitioner. Careful analytical

scrutiny of the evidence will reveal that the verbs, adverbs,

and adjectives selected by the author of the Commission's

report are so venomous and so grossly overstate Petitioner's

conduct that the impartiality of the proceedings must be

questioned. Due process calls for a thorough review of the

record by this court.

Reportedly, this matter arose upon the receipt by the

Commission of a total of fifteen complaints submitted by

citizens of Peach County, after news stories publicized that

all five County Commissioners were arrested on a felony

warrant requested by Petitioner. Subsequent to his arrest,

Charles Bartlett, Chairman of the Peach County Board of

Commissioners, filed a complaint with the Commission

against Petitioner.

B. Course Of Proceedings

Petitioner was first notified of this matter by letter

dated January 10, 1994. The Judicial Qualifications

Commission instructed her to meet with the Commission on

Friday, January 28, 1994.

Petitioner met with the Commission as directed;

denied the allegations made against her, both orally and in

writing; and stated unequivocally that she had at all times

adhered to the highest standards of judicial conduct. .

[R.44-45].

Following this conference and by letter dated January

31, 1994, Petitioner received notice that the Commission had

voted to investigate the complaints filed against her.

A55

Petitioner sent a letter to the Commission, dated February 11,

1994, wherein she adopted and incorporated by reference her

letter of January 28, 1994, and again denied any willful

misconduct in office or any conduct prejudicial to the

administration of justice which might bring the judicial office

into disrepute. [R.48].

A Notice of Formal Proceedings was subsequently

received by Petitioner, dated March 31, 1994. [R.49-53].

On or about May 4, 1994, Petitioner's Answer to the

Notice of Formal Proceedings generally denied all allegations

and contained numerous special defenses. [R. 55-65].

A pre-hearing conference was scheduled for

September 27, 1994, by Judge Hugh Lawson, the Judicial

Commission member designated by the Chair to preside in

this matter.

Immediately prior to the scheduled pre-trial

conference, Petitioner filed in this Court an emergency

motion for a continuance of the scheduled pre-trial

conference, as well as the Formal Hearing then scheduled to

begin on September 29, 1994. [R. 82-87]. This Motion was

opposed by the Commission [R. 88-117], and by order dated

September 26, 1994, such Motion was denied without

opinion. [R.118].

The matter was subsequently heard by the full

Commission on September 29, 1994 and September 30,

1994.

At the outset of the Formal Hearing, Petitioner's

Motion to Recuse [R. 119-123] and her oral motion for

continuance were denied. [FHT 1-18].

At the conclusion of the Formal hearing, counsel were

directed to submit written arguments.

A56

C. Disposition Bel

On December 9, 1994, the Commission issued its

FINDINGS AND RECOMMENDATIONS and

recommended that Petitioner be removed from office.

Il

STATEMENT OF FACTS

A. General Statement

From the day before Petitioner took office, when the

lame-duck Board of Peach County Commissioners, as

punishment, reduced her salary to the statutory minimum of

$13,125 per year [FHT p. 129], until the day the newly

configured Board of Peach County Commissioners, in

violation of both the civi]_and criminal laws of this State,

threatened to rescind the salary increase they had previously

granted to her, Petitioner has admirably withstood the

onslaught of an inept, lethargic, inefficient and sometime

punitive Board of Commissioners in complete control of the

power of the purse. Petitioner, unlike probably any other

Magistrate in the State of Georgia, has found herself - a duly

elected judge by the constituents of Peach County - held

economic hostage to the purse strings of the Board of

Commissioners; yet bound by the stringent requirements of

the Cannons of Judicial Conduct, a Code of Judicial Conduct

which she holds in high esteem, interprets literally, and has

faithfully followed.

Petitioner was asked by citizens of Peach County to

run for office amid ‘allegations of corruption and

mismanagement. Once deciding to run for office, Petitioner

ran her political campaign on a political platform against

government corruption and in favor of change. Petitioner, in

A57

a contested election, unseated a 16-year incumbent, George

Harris, who himself had been brought before the Judicial

Qualification's Commission amid allegations of fiscal

corruption in the Magistrate Court. From her first day in °

office, Petitioner has found herself in the unenviable position

of repeatedly requesting even the most fundamental of

supplies to efficiently discharge her administrative

responsibilities, including but not limited to, obtaining the

return of items looted from the Magistrate Court during the

waning days of the prior administration; obtaining the alarm

code which would enable her to get into her office on

weekends to fulfill her constitutional duties with respect to

the presentment of prisoners; obtaining staff support

sufficient to conduct the business of the Magistrate Court;

obtaining working chairs in which visitors to the Magistrate

Court can sit; obtaining pens and pencils, paper, and paper

clips; curtains for curtain rods; and obtaining a working air

conditioner. As if it were not enough that a sitting judge

would have to repeatedly request such information and/or

supplies from the powers that controlled the purse, but often

these items were never provided to her or were provided

months after they were requested. For example, Petitioner,

sought return of the items taken from her office by the prior

administration in letters dated January 4, 1993, April 19,

1993, May 17, 1993, May 31, 1993, June 2, 1993, and June

14, 1993. [See respectively Ex. 1, 2, 15, 19, 22, 23, 25, 29].

Petitioner sought a break down of the Magistrate Court

budget in letters dated May 3, 1993, May 24, 1993, June 14,

1993, July 12, 1993, July 28, 1993, August 23, 1993, and

November 8, 1993. [See respectively Ex. 16, 17, 20, 30, 40,

53, 61 and 97]. Petitioner has repeatedly expressed her

concern over courthouse security in letters dated June 14,

1993, July 6, 1993, July 24, 1993, and August 23, 1993. [See

respectively Ex. 31 (page 2), 39, 50, 59, and 62]. Does harm

A58

to a magistrate or employee have to occur before such money

is allocated? Petitioner has repeatedly told members of the

County Commission that she needs more employees or larger

salaries for her present staff because the prior administration

had six (6) employees and she has three (3) performing a

larger workload in letters dated June 14, 1993, July 12, 1993,

September 3, 1993, November 8, 1993, November 8, 1993,

November 12, 1993 (two letters), November 22, 1993, and

June 6, 1994. [See Ex. 33, 43, 69, 98, 99, 100, 102, 105, and

131]. Should the County Commissioners be allowed to

prevent the Magistrate Court from functioning by refusing to

adequately staff the Court? Petitioner has gone so far as to

use her own personal computers and personal money to

purchase security and necessary supplies precisely because

the Commissioners have refused to issue purchase orders for

these items. [FHT p. 313; Ex. 3 (page 6), 38, and 60].

B. As Stated The Evid in S | of the Findi

Misrepresents the Truth

As outlined by the Notice of Formal Proceedings the

allegations as stated in support of the charges and the

evidence used to support the Commission's subsequent

findings grossly mischaraterizes and misstates the facts as

evidenced by the record. Petitioner's untangling of the

allegations and twisted facts will reveal a professionally

dutiful, fair, honest, and ethical judge, who is most worthy of

the judicial office to which she was elected.

The voluminous record of 168 exhibits assembled by

the Commission has been reduced into three (3) easy to

review and informative table summaries by Petitioner, and

are attached to this Petition and Supporting Brief as

Appendices A (Summary of Plaintiffs Exhibits), B

(Summary of Plaintiffs Exhibits - Petitioner's

A59

Correspondence With Board of Commissioners), and C

(Summary of Plaintiffs Exhibits - Petitioner's

Correspondence With Sheriff). These appendices accurately

summarize Plaintiff's exhibits by their hearing record exhibit

number and provide a quick reference to this otherwise

lengthy and burdensome part of the record. Reference to an

appendix summary will hereinafter be cited as [Appendix _

(appropriate letter designation)].

(1.) Magistrate Court: The Lack Of

c ‘ion F Other County Official

The Commission's declaration that Petitioner has

been at war with almost every other elected official in Peach

County has put the proverbial cart before the horse and

grossly mischaracterized the facts. There would never have

been any difficulties with the Sheriff and County

Commissioners if they had met only the minimum "literal

requirements of the law". Specific treatment of these matters

will be more fully discussed below, but generally speaking,

Petitioner has been required again and again to cite for the

County Commissioners and Sheriff what are the literal

requirements of the law. In spite of such counseling, the

members of the County Commission and Sheriff's

Department have continued to either ignore the literal

requirements of the law or to openly perform acts in violation

of them. If Petitioner in her dealing with the Sheriff's

Department has brought disrepute on her Court - which she

vehemently denies - by requiring that its duly appointed

officers comply with the minimum requirements of the law

then so be it. Petitioner apparently finds herself between a

rock and a hard place in "diligently discharging] [her]

administrative responsibilities" under Canon 3(C) and

dealing with a system resistant to compliance with either

A60

efficiency of service or the literal requirements of the law.

Should she be punished for faithfully and enthusiastically

following Canon 3(C)?

(2.) Petitioners Correspondence

The Commission's statement that Petitioner made

repeated and almost continuous demands on various county

officials substantially mischaracterizes the truth. No doubt

Petitioner has written many letters. Petitioner is a product of

business where you are taught to put everything in writing to

document issues and requests. [FHT p. 305-306; See

Appendices A, B, &_C]. Petitioner has written letters to the

Sheriff, the Board of Commissioners and _ their

Administrative Clerk. Every letter written by Petitioner to

the Board of Commissioners involves a subject germane to

either the administrative or judicial functioning of the

Magistrate Court. All requests for supplies, information, and

reimbursement by Petitioner were requests for fundamental

items necessary for the basic functioning of the Magistrate

Court, and Petitioner has been forced to re-request the same

information and/or supplies over and over again. [FHT p.

317-318]. The letters speak for themselves. The letters are

not "imperious and demanding in tone" [FHT p. 137],

although after requesting the same information sometimes

five and six times they should be demanding and imperious.

In contrast, see letters from the Commissioners, Exhibits 73,

85 where the snide language of power pours fourth: "Where

did you ever get the impression that your salary should be

based on that of any other employee of the county" and "We

regret that you didn't see fit to attend our meeting today".

Finally, see the unsigned, open letter of the Board of

Commissioners [Ex. 85 p. 2, 3] read to the news media in a

(Srinish txt ni doeed as de tind aah asda, Pe s

A6él

called meeting of the Board of Commissioners. Also, see

Petitioner's measured response in Exhibit 87.

(3) Petiti 's Orders to Sheriff and hi

Lawful Deputies

Petitioner is accused of intentionally misusing

judicial power in issuing a set of four (4) orders to the sheriff

and his lawful deputies. The Commission contends that

Petitioner issued identical orders to each and every employee

of the sheriff's department, regardless of the position held by

such employees, which were beyond the power and authority

of a Magistrate to issue, and that there is absolutely no

evidence in the record that the sheriff's department had ever

refused to serve and/or deliberately delayed the service of

any papers issuing from the Magistrate Court. Each and

the following review of the record. A review of the four

orders [Ex. 71] shows that each order is separate and distinct

and reflects one of the four (4) Statutory powers and duties of

constables, as outlined in O.C.G.A. 15-10-102, which apply

to the sheriff and his deputies when the county governing

authority has not provided for the appointment of constables,

pursuant to O.C.G.A. 15-10-100. Here we have the first of

numerous instances of where the facts were misstated by the

Commission. On cross-examination Deputy Deese testified

that the orders were not identical, that they were separate

orders in every file [FHT p. 202]. The orders clearly read

that they were issued to only the sheriff and his lawful

deputies, and not to any other employee within the sheriff's

department.

The reason that fifty six (56) file folders for 56 named

employees were sent to the sheriff's department, as explained

by Petitioner, was because she did not know which of the

A62

employees were deputies. [FHT p. 330; p. 336, and p. 401]

Petitioner's testimony in this regard was corroborated by

Chief Deputy Deese's testimony [FHT p. 202-p. 203]. Even

though the orders on their face were not issued to any

employee, except the sheriff's lawful deputies, and the

testimony of both Petitioner and Deputy Deese indicate that

Petitioner did not know who were deputies, the Commission

would still have this Court believe that Petitioner was

attempting to usurp some power over the other employees of

the sheriff's department. Once again, the Commission's

report is less than candid with the facts.

Each Court may exercise such Constitutional judicial

power as necessary in aid of its jurisdiction or to protect or

effectuate its judgments. The Constitution of the State of

a Every Court has

tatutory authority to control the conduct of its officers,

pi to the provisions of O.C.G.A. 15-1-3. Accordingly,

within reason it does appear that Magistrate Judges do have

the power to issue Orders proscribing conduct of its court

officers for the proper functioning of their courts. Not only

do Magistrate Court judges have the power to issue such

Orders but judges are ethically bound under the Code of

Judicial Conduct Canon 3(C)(1) and (2) [Formerly 3(b)(1)

and (2)], to maintain order and diligently discharge their

administrative responsibilities and to require similar conduct

of their staff and court officials.

The four (4) Orders specifically address Petitioner's

concern over security in her courtroom, the delay in serving

warrants and other papers by the Sheriffs Department, and

delay in the Sheriff's department in turning over money “* the

Magistrate Court. [FHT p. 330-35, Ex. 31, 36, 50, 59, 68, 88,

93, 94, 121, 117, 123, 129, 130, 132, 133 (See discussion),

134, 137, and 139]. Many of the exhibits are replete with

examples of the continuing failures by the Sheriff's

iad ale iat Og (i

A63

Department to fulfill its statutory duties which in turn

prevented the Magistrate Court from functioning properly.

[See Ex. 68, 88, 93, 94, 95, 96, and 133].

An astounding list of factual statements showing that

the sheriff and his deputies have failed to perform their duties

with respect to the Magistrate Court is set forth in Petitioner's

verified complaint filed against the Board of Commissioners

of Peach County [Ex. 168 p. 7-11]. Yet, given the enormous

amount of facts evidencing the sheriff's department failure to

properly provide service to the Magistrate Court, the

Commission would have this Court believe that the sheriff

was performing his duties and the Petitioner was misusing

her judicial power when she responded to such nonfeasance,

malfeasance, and misfeasance. After experiencing for over

eight months, since her term of office began, the lack of the

service required for the proper functioning of the court,

Petitioner issued the orders to the sheriff and his lawful

deputies. [Ex. 168 p. 10 para. 54]. They were merely a

remedial form of notice, outlining the sheriffs and his

deputies general statutory duties with regard to the

Magistrate Court. Under the circumstances at the time they

were issued they were nothing more than a prudent attempt

by a dutiful judge to make her court officers aware of their

official responsibilities.

(4.) Deese Rule Nisi For Civil C

Petitioner sent the Orders to Deputy Deese at the

Sheriffs Department to serve because the Sheriff was on

vacation, therefore, Deputy Deese was responsible for

performing all the duties of the Sheriff. (FHT 195). Further,

Deese was required by law to serve such Orders in the

Sheriff's stead. First, Deese told Petitioner that he was

ing the Orders. a few days later he advised her that |

A64

had not served any of them. Deputy Deese, as he admitted

under oath, lied to Petitioner when he told her that he had

served some of the Orders when in fact he had made a

conscious decision to refuse to serve the Orders until the

Sheriff was back from vacation. [FHT p. 201, 202, 337].

Deputy Deese even makes the admission, under oath, that he

felt by telling Petitioner that he was not serving the Orders

that he would have been charged with contempt. [FHT p.

201]. There was no deputy sheriff in the county willing to

serve the court's Orders on Deese so he was eventually

served with a copy of the four (4) orders by Magistrate Court

Deputy Clerk, William Cooney, who was appointed a pro

tempore special officer, pursuant to O.C.G.A. 15-13-10. [ Ex.

82]. Because Deputy Sheriff Terry Deese refused verbally

over the telephone to serve the Orders on the other deputies

as he was required by law to perform, he was served with a

Rule Nisi and ordered to appear at a hearing to determine

whether he should be held in Civil Contempt. This event was

precipitated by the fact that Petitioner had issued these orders

which restated existing Georgia Law precisely because of the

failure of the Sheriff's department to perform these duties.

Petitioner at the contempt hearing again ordered Deputy

Deese to serve the Orders which to this day he has refused to

perform. [FHT p. 204]. In spite, of his dishonesty and in

spite of his continuing blatant refusal to perform the lawful

duties of a Deputy Sheriff, Petitioner "purged" Deputy Deese

of any Civil Contempt, after ordering him from the bench to

serve the orders on those deputies not present at the hearing,

which was attended by most members of the Sheriff's

department. Petitioner ruled from the bench. [FHT p. 203,

342-343]. Since most members of the Sheriff's Department

voluntarily attended the hearing [FHT p. 194; Ex. 167], and

since it was Petitioner's purpose in the first place to only

make sure that the Sheriff's deputies were aware of their

A65

official responsibilities with respect to the court, she had each

of them give their names, after which she verbally issued the

four (4) Orders to them.

When the Commission said, "when said orders were

not served promptly enough to satisfy the Respondent, she

issued a Rule Nisi to the Chief Deputy Sheriff for civil

contempt", it was again misleading this court by

mischaracterizing the facts. In fact, it is reasonable to

conclude that Petitioner's conduct demonstrates substantial

judicial patience and tolerance, especially after her court had

suffered eight (8) months from the negative effects of the

deficient service by the sheriff's department - deficient

service that the sheriff readily admitted under oath. [FHT

p.150, 151}.

Petitioner has been criticized by the Commission for

denying a motion to recuse filed by counsel for the accused;

acting as both prosecutor and judge; and for failing to follow

the procedures as outlined in Dowdy v. Palmour, 251 Ga.

135, in order to meet due process requirements. First,

counsel for the accused failed to present an affidavit in

support of his motion to recuse, thus, Petitioner properly

denied the motion. [Ex. 167]. Second, it is proper procedure

for a judge to singularly hear civil contempt matters, and

such is done every day in courts throughout this State. Third,

the procedure outlined in the Dowdy case presupposes the

possibility of some form of punishment being meted out by

the court, and is relative to criminal contempt cases. Deese

was never in jeopardy of such punishment, .e..,

admonishment, fine or jail. This was a civil contempt

proceeding in which the Rule Nisi was used as a vehicle to

bring him before the court, so that the remedial procedure of

giving him a direct order from the bench could be

accomplished. Petitioner asserts that under such

circumstances Dowdy is not applicable. Instead of indicating

A66

a judge who misuses the power of her office, such application

of a remedial cure to a long-standing problem, disobedience

of its court officers, suggests a judge with a reserved and

thoughtful temperament. Furthermore, to deny any court the

prudent use of such remedial power would invite civil

anarchy by its court officers and disrespect for its judicial

authority.

(5.) Poole Rule Nisi For Criminal Contempt

After it became obvious to Petitioner that no deputy

was going to serve the sheriff with a copy of the orders,

Petitioner called upon the coroner to serve the sheriff.

Petitioner gave him an order to serve the Sheriff [FHT p.

338-339, Ex. 81] and a copy of the four orders to serve on the

Sheriff. [Ex. 71]. Coroner Poole, much like the County

Commissioners, received incorrect legal advise and, acting

on that advise, refused to serve the Sheriff with the Orders.

Under Georgia Law, O.C.G.A. 45-16-8, the coroner is

authorized to serve the sheriff when the sheriff or his deputy

refuses to serve a writ or other process. When Petitioner

attempted to explain to the Coroner the procedure for serving

a sheriff in Georgia, Coroner Poole stormed out of the

Magistrate Court refusing to serve anything, saying, "1 am

not serving anything you say, I don't have to". [FHT p. 338,

339; Ex. 75, 77]. Petitioner, thereafter, issued a Rule Nisi for

a criminal contempt hearing with regard to Coroner Poole for

his willful disobedience to a lawful order of the court. There

was no deputy sheriff in the county willing to serve the

court's papers on the coroner so the rule nisi was served on

Poole by Brooks Livingston, who was appointed a pro

tempore special officer, pursuant to O.C.G.A. 15-13-10. [Ex.

78]. On September 23, 1993, after Deese's rule nisi hearing,

Petitioner called the Sheriff and arranged a meeting between

A67

them to discuss the service the Sheriffs department was

providing the court. At the meeting which was held that

same day, the Sheriff agreed to solve the problems if

Petitioner would continue or cancel the Coroner's nule nisi

hearing scheduled for September 24, 1993, at 4 p.m.

Petitioner, in good faith, issued an indefinite stay with

respect to Poole's hearing and instructed her deputy clerk the

next morning to call Coroner Poole and advise him of the

stay. [FHT p. 341-342]. At that time no attorney had entered

an appearance on behalf of the Coroner. [FHT p. 342]. The

contempt rule nisi hearing having been indefinitely stayed,

Coroner Poole, was not then, nor has he ever been, held in

contempt. [FHT p. 342; Ex. 86]. Much of this is in sharp

contradiction to the summary of evidence in support of the

Commission's FINDINGS. Certainly, these facts do not

describe an unreasonable or uncooperative judge who abuses

her power, but they do make one wonder about the conduct

and motivations of some of the other elected officials in

Peach County.

6.) £ Decades latiniAetion O66

Some events that lead up to the subject act of the

attempt to intimidate Petitioner, which have not as yet been

discussed may, when accurately detailed, shed some

additional perspective on the matter. October 1, 1993, was

the beginning date for the 1994 budget. For months

Petitioner had tried in vain to obtain the necessary

information from the Board of Commissioners so that she

could make an intelligent and sensible budget presentation to

the Board. [Ex. 16, 20, 21, 30, 40, 53, 61, 57, 69]. All

requests for information or assistance were totally ignored.

[See Exhibit Summary, Appendix B ]. On September 15,

1993, Petitioner requested that she be given an annual salary

A68

increase in the next budget. [Ex. 72]. On September 20,

1993, Petitioner's request for a salary increase provoked an

unusually quick response by Chairman Bartlett in the form of

a notably sarcastic letter. [Ex. 73]. On September 22, 1993,

the County Commissioners wrote to Petitioner and asked her

to meet with them at a called meeting on September 24,

1993, at 4 p.m., which concerned "the office of Magistrate

Judge". [Ex. 83]. Again, the Commission misstates the facts

in their evidentiary summary, which states that Petitioner

refused to meet with the County Commissioners. Petitioner

in a response on September 22, 1993, simply requested an

adequate notice so that she could properly prepare for the

meeting - she did not refuse to attend the meeting. [Ex. 84].

(7.) The Intimidation Of The Court By TI

Board OfC ee

The letter that was read at the meeting called on

September 24,1993, before an assemblage of newspaper and

television reporters [FHT 127], and subsequently mailed to

Petitioner is at the root of the instant matter. [Ex. 85]. The

letter was read publicly the day after Petitioner held Deputy

Deese's rule nisi hearing for civil contempt and immediately

after the hour scheduled for Coroner Poole's rule nisi hearing

for criminal contempt, which Petitioner indefinitely stayed.

[Ex. 86]. The letter itself states the primary reasons for its

creation and delivery to Petitioner, which in pertinent part

reads:

...The last straw was your recent group of

memos to Sheriff‘Becham where you ordered

him to do certain things. If you have a

problem with the Sheriff, it is your

responsibility to get with him and work out

A69

whatever the situation requires- and not to just

serve papers on him. In addition, you have

brought contempt charges against his deputy

and against the County Coroner. This is not

the way to establish a good working

relationship with people... [Ex. 85].

The threat aspect of the letter reads:

...We have decided to give you 30 days to see

if you can get your act together. If you

continue with your present attitude, causing

problems and conflict in the county

government, we will have no choice but to

recind your salary increase and return you to

the original salary granted to you by the

previous commissioners... [Ex. 85].

A reasonable person could conclude just from a

reading of the letter, as Petitioner did, that the County

Commissioners were attempting to influence Petitioner's

conduct with regard to the Court's Orders and the contempt

proceedings . However, there is even stronger evidence that

this is so. In his testimony before the Commission,

Chairman Bartlett testified that he met Coroner Poole to

discuss Poole's pending rule nisi hearing for criminal

contempt. [FHT p. 77]. After he met with Coroner Poole,

Bartlett testified that, "[I] felt like at that point something

had to be done and the commissioners got together and

decided that we needed to see what we could do". [FHT p.

77). Bartlett then testified that, "I checked with our attorney

and the county attorney advised me that since we had

increased her pay, we could decrease her pay. So we wrote a

letter to her...". [FHT p. 78]. Further, Bartlett was asked,

"When did you all decide you were going to do this?" And

A70

Bartlett answered, "This was , as I recall, almost immediately

after she brought the contempt charges against Mr. Poole and

then would not come into the courtroom.” [FHT p. 126-127].

Bartlett also admits, under oath, that the County

Commissioners were trying to use their economic leverage to

change Petitioners conduct. [FHT p. 133-134].

ee a ee ee ‘udicial decisi id

functioning of her office by the County Commissioners'

September 24, 1993 letter [FHT p. 349, 412, 438], and had

the Commissioners been legally able to reduce her salary

they would have done just that. It was not until the County

Commissioners’ counsel changed his legal opinion that the

threat to reduce Petitioner's salary did not become a reality.

[FHT p. 259].

The County Commissioners admit that they acted on

incorrect legal advise in deciding to reduce Petitioner's

salary. [FHT p. 261-262]. Furthermore, they did not act in

"good faith", even though they got bad legal advise. Not

only had Commissioner Bartlett met with the County

Attorney seeking legal advise on whether they could vote to

reduce Petitioner's salary prior to issuing the September 24th

letter, but in Commissioner Jack D. Taylor's deposition, he

stated unequivocally that the purpose behind threatening to

reduce Petitioner's salary was to "punish" Petitioner.

[Deposition of Jack Taylor 59, 60]. Mr. Taylor, of course,

denied making this statement in the hearing before this

Commission stating instead that the purpose of the threat was

that he hoped "harmony should prevail". [FHT p. 259]. On

the other hand Bartlett did note that the decision by the

previous Board of Commissioners to reduce Petitioner's

salary after she was elected, but before she took office, was a _

"political" decision. [FHT p. 129].

A71

(8.) Petitioners Response To Letter Threatening

Petitioner responded initially to the County

Commissioners September 24th letter by indicating in her

letter of September 27, 1993, that she was reluctant to

comment on the matter unless it was official action by the

board. She did refer to the letter's content as diatribe which,

in fact, accurately described the letter. Webster's dictionary

defines diatribe as meaning: 1. a prolonged discourse, 2. a

bitter and abusive speech or writing, 3. ironical or satirical

criticism. [Ex. 87].

For some unknown reason relative to this time period,

the Commission makes a point to state that "after the

September 27, 1993, letter, Respondent always signed her

correspondence over the title "The Honorable Linda O'Neal".

[citing Ex. 87 forward]. But as usual the Commission was

wrong in their statement of the facts. Although restrained to

stay within the record, Petitioner can and does offer Exhibit

70, a letter dated September 13, 1993, for proof that the

The Commission states that 'nowhere in ... this record

is there any mention of the alleged "threat" which

subsequently gave rise to the felony warrants’. This is not a

true statement. The Commission's own Exhibit 160, news

articles, indicates that newspapers perceived the County

Commissioners’ September 24th letter as communicating a

"threat".

(9.) The Issuance Of Arrest Warrants Against

The County C a

Following receipt of the letter by the Board of

Commissioners which threatened to reduce her salary to the

A72

statutory minimum unless she "got her act together",

Petitioner did not "act out of personal animosity and anger"

and have the Peach County Commissioners arrested, but

rather, she felt the Commissioners were trying to "control the

court and the actions of the court" and tell her "how to run

the court". [FHT p. 349, 355]. Instead of acting out of

animosity and anger, Petitioner consulted the law books to

determine whether the action by the Board of Commissioners

was legal; asked the Board if the resolution adopting the

letter was official Board action - which they affirmed [FHT

p. 132, 351]; contacted her District Attorney, Mr. Sparks

[FHT p. 355-357]; contacted Judge Hughes of Twiggs

County [FHT p. 357-359]; talked to Danny Porter, a District

Attorney from Gwinnett County whose name was chosen

from the phone book [FHT p. 357-358]; talked with Judge

Judy Cooper from Clay County [FHT p. 359]; called Judge

Kendall Jordan in Hart County and faxed him information

[FHT p. 359-361]; faxed the affidavit in support of the arrest

warrant to Wayne Purdom, the President of the Magistrate's

Counsel [FHT 359-360]; called the Attorney General's Office

[FHT p. 361-362], and spoke to Judge Burke from Houston

County [FHT p. 362]. Of the several individuals Petitioner

contacted and consulted or tried to contact with respect to the

criminal nature of the September 24th letter, some did not

respond, some who agreed that a crime had been committed

had no authority to issue criminal warrants, and all judges

who had the authority to issue criminal warrants and who

agreed that a crime had been committed refused to issue

criminal warrants because of political ramifications [FHT p.

358, 359], with the exception of one. That Judge, Judge

Kendall Jordan of Hart’ County, issued the warrants. The

Commission gives the impression that those who refused to

issue warrants did not really agree that a crime had been

committed or that Petitioner was not truthful in her

A73

testimony, and they accomplish this impression by making

the statement, "all refused to issue the requested warrants".

; ' a The

Commission would lead one to believe that Petitioner sought

out a personal friend to issue the warrants, but she did not.

[FHT p. 364]. Instead, she correctly sought a neutral and

detached magistrate judge to review the matter and issue any

justified warrants. [FHT p. 359, 426]. Judge Jordan found

that sufficient probable cause existed to believe that the

County Commissioners had violated O.C.G.A. 16-10-97 and

issued the warrants. As Judge Kendall Jordan noted in his

deposition, he did not even recognize Petitioner when she

came in his door. [Deposition of Jordan, p. 22]. Judge

Kendall Jordan felt comfortable signing the warrants after

reviewing the law precisely because Petitioner "had waited a

period of time. It wasn't like it happened yesterday, this

afternoon, or the day before yesterday and I want a warrant

today". [Deposition of Jordan, p. 19]. To her credit,

Peiitioner did wait two months before seeking warrants, as

Judge Jordan so aptly noted. Once the warrants were signed

on December 21, 1993, to prevent publicity, Petitioner took

the warrants with her back to Peach County, and secured

them in her office late that evening. The next day, December

22, 1993, Judge Jordan called Petitioner and asked her to

hold the warrants so that she could call the Attorney

General's office to find out which county's name should go

on the warrants, Hart or Peach. [FHT p. 361-362]. Petitioner

called the Attorney General's office and Judge Burke. [FHT

p. 362].

A74

(10.) Reason Warrants Held 7 Days Before

Deli To Sheriff

Besides the two (2) day delay caused by the issue

over the proper county name to be on the warrants, as related

earlier in paragraph 9. above, the Christmas Holidays were a

factor in the seven day delay from the time the warrants were

signed, December 21, 1993, and when they were delivered to

the Sheriff for execution. This Court can take judicial notice

of the fact that Christmas Eve, December 24, 1993, fell on a

Friday in 1993 and Christmas was on Saturday. As a result

of Christmas falling on a weekend, the following Monday,

December 27, 1993, was also a holiday. The next business

day was Tuesday, December 28, 1993. Also, Petitioner did

not want to interfere with the Commissioners’ Christmas

holidays, so she waited uritil December 28, 1993, to deliver

the warrants to the Sheriff's Department. [FHT p. 363]. This

deference shown the County Commissioners by Petitioner is

inconsistent with the notion that she sought the warrants out

of animosity for the commissioners or in retaliation for the

September 24, 1993, threat to reduce her salary, as the

Commission would have this Court believe.

(11.) Both Petitioner And Magistrate Court

canyon

Petitioner was in the unique position of being both

victim of a crime, with its concomitant responsibilities as lay

prosecutor, and the holder of a judicial office against whom

she believed a criminal offense had been committed. [FHT

p. 355]. O.C.G.A. Section 16-10-97 makes it a crime to

endeavor to intimidate or impede by any threatening letter or

communication any court of any county or a court officer

which arises out of or is related to the performance of the

A75

court officer's official duties, whether the proscribed activity

occurs while the court officer is actively engaged of the

matter giving rise to the offense or whether the

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